[Federal Register Volume 66, Number 248 (Thursday, December 27, 2001)]
[Rules and Regulations]
[Pages 67010-67067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31614]



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Part IV





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 938



Pennsylvania Regulatory Program; Final Rule

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

[[Page 67010]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-122-FOR]


Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule.

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SUMMARY: OSM is approving, with the exceptions noted below, an 
amendment to the Pennsylvania program. Pennsylvania is amending its 
Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) and 
implementing regulations at 25 Pa. Code Chapter 89 to require 
underground mine operators to repair or compensate landowners for 
subsidence damage to certain structures and facilities and to restore 
or replace water supplies adversely impacted by underground mining 
operations.

EFFECTIVE DATE: December 27, 2001.

FOR FURTHER INFORMATION CONTACT: Beverly Brock, Acting Director, Office 
of Surface Mining Reclamation and Enforcement, Harrisburg Field Office, 
Harrisburg Transportation Center, Third Floor, Suite 3C, 4th and Market 
Streets, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. Director's Findings
    A. Changes to the BMSLCA
    B. Changes to the Regulations at 25 Pa. Code Chapter 89
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Effect of Director's Decision
VII. Procedural Determinations

I. Background on the Pennsylvania Program

    Section 503(a) of the Surface Mining Control and Reclamation Act 
(SMCRA or the Act) permits a State to assume primacy for the regulation 
of surface coal mining and reclamation operations on non-Federal and 
non-Indian lands within its borders by demonstrating that its State 
program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act; and rules 
and regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the Pennsylvania program on July 30, 1982. You can find background 
information on the Pennsylvania program, including the Secretary's 
findings, the disposition of comments, and the conditions of the 
approval in the July 30, 1982, Federal Register (47 FR 33050). You can 
find subsequent actions concerning the Pennsylvania program and 
previous amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Submission of the Amendment

    By letter dated July 29, 1998 (Administrative Record Number PA 
841.07), the Pennsylvania Department of Environmental Protection 
(PADEP) submitted an amendment to its approved permanent regulatory 
program pursuant to the federal regulations at 30 CFR 732.17(b).
    We announced the proposed rulemaking in the August 25, 1998, 
Federal Register (63 FR 45199). The rule described Pennsylvania's 
proposal to modify the BMSLCA through Act 54 and also described 
Pennsylvania's proposal to make changes to its regulations at 25 Pa. 
Code Chapter 89, titled ``Underground Mining of Coal and Coal 
Preparation Facilities.'' The first public comment period closed on 
September 24, 1998. In response to requests from three people, the 
comment period was reopened on September 25, 1998, (63 FR 51324). This 
second comment period closed on October 19, 1998. A public hearing was 
held on October 13, 1998, at Washington, Pennsylvania (Administrative 
record numbers PA 841.21, 841.22, and 841.31).
    After reviewing the written comments we received, the information 
received at the public hearing and conducting our own review of the 
amendment, we sent two letters to Pennsylvania requesting clarification 
of numerous issues. The letters were sent on June 21, 1999, 
(Administrative record number PA 841.32) and June 23, 2000, 
(Administrative record number PA 841.40). Pennsylvania responded to the 
first letter on June 1, 2000, (Administrative record number PA 841.39) 
and to the second on July 14, 2000 (Administrative record number PA 
841.41). The substance of the issues and Pennsylvania's responses are 
discussed below.
    We reopened the public comment period on December 8, 2000, (65 FR 
76954) to seek comment on Pennsylvania's response to our two letters. 
Two commenters responded to this reopening. Their comments and our 
response are found in the response to comments section.

III. Director's Findings

    Note: Throughout this final rule, unless otherwise indicated, 
``Director'' refers to the Director of OSM.

    We have noted throughout this final rule that we are not approving 
or are requiring amendments to some of Pennsylvania's statute and 
regulations regarding repair or compensation for structural damage and 
restoration or replacement of water supplies. We wish to make it clear 
that any of the sections not approved or required to be amended only 
apply to structures and water supplies that are protected under EPAct 
and do not apply to structures or water supplies that are not protected 
by EPAct.

A. Changes to the BMSLCA

    Set forth in the explanation below and the table that follows, 
pursuant to SMCRA and the federal regulations at 30 CFR 732.15 and 
732.17 are the Director's findings concerning the proposed amendments 
to the BMSLCA. The Director's reasons for approving, conditionally 
approving, requiring amendments to, or not approving sections of, the 
BMSLCA are noted. The sections are listed in the order they appear in 
the BMSLCA for easy reference.
    Section 4 (52 P.S. 1406.4). This section was repealed by Act 54. 
Prior to repeal, the section provided protection from subsidence from 
bituminous coal mining to certain structures in place as of April 27, 
1966. The Director is approving the repeal of this section because it 
had afforded a level of protection to structures beyond that contained 
in the federal regulations. The repeal of section 4 means that the 
BMSLCA affords the same level of protection to structures regardless of 
when constructed, which is consistent with the federal regulations. 
Thus, the repeal of this section does not render the Pennsylvania 
program less effective than the federal program.
    Section 5(b) (52 P.S. 1406.5(b)). The full text of section 5(b) 
prior to modification by Act 54 read, ``The department shall require 
the applicant to file a bond or other security as recited in section 
6(b) to insure the applicant's faithful performance of mining or mining 
operations in accordance with the provisions of section 4.'' The 
section was modified by Act 54 to change the reference from section 
6(b) to 6(a) and to delete the phrase ``in accordance with the 
provisions of section 4.''

[[Page 67011]]

    The Director is approving the deletion of the phrase ``in 
accordance with the provisions of section 4'' because it was made in 
response to the deletion of section 4, which was approved for the 
reasons given above. However, the reference to section 6(a) is 
incorrect because section 6(a) was deleted. The correct reference 
should have remained section 6(b). The Director is requiring 
Pennsylvania to correct the reference to the bonding requirements.
    Section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)). This section requires 
that a water supply adversely impacted by an underground mine be 
replaced ``with a permanent alternate source which adequately serves 
the premining uses of the water supply or any reasonably foreseeable 
uses of the water supply.'' The implementing regulations at 25 Pa. Code 
89.145a(b) include identical language.
    Pennsylvania's implementing regulations at 25 Pa. Code 
89.145a(f)(3) also specify that--
    A restored or replaced water supply will be deemed adequate in 
quantity if it meets one of the following:
    (i) It delivers the amount of water necessary to satisfy the water 
user's needs and the demands of any reasonably foreseeable uses.
    (ii) It is established through a connection to a public water 
supply system which is capable of delivering the amount of water 
necessary to satisfy the water user's needs and any reasonably 
foreseeable uses.
    (iii) For purposes of this paragraph and with respect to 
agricultural water supplies, the term reasonably foreseeable uses 
includes the reasonable expansion of use where the water supply 
available prior to mining exceeded the farmer's actual use.
    The Director is approving paragraph (iii) because it provides for 
protection for agricultural uses that are not protected under the 
federal regulations and is in accordance with 505(b) of SMCRA.
    By letter dated June 21, 1999, we originally expressed concern with 
25 Pa. Code 89.145a(f)(3)(i), stating that:

    Pennsylvania's proposed statute [and rule] appears to be less 
effective than the federal rules because it allows evaluation of the 
adequacy of a replacement water supply quantity to be based on use 
rather than the premining quantity. Through this statute [and rule], 
Pennsylvania would allow restoration to a level that is adequate for 
premining use, but this could be significantly less than the 
premining quantity and quality of the supply.

Pennsylvania responded by letter dated June 1, 2000:

    OSM believes that a replacement water supply must have a yield 
equal to or greater than the yield of the premining water supply in 
order to be considered adequate. This position allows no 
consideration for the quantity of water actually used by the 
landowner or water user.

    In addition, it is important to recognize that Pennsylvania's 
law requires an accounting of foreseeable uses when determining the 
adequacy of replacement water supplies. If the water user's 
premining needs were only 4 gpm but the user had plans that would 
utilize the full 10 gpm capacity of the well, the replacement supply 
would have to produce the 10 gpm under the Pennsylvania program.

    After reconsidering the preamble to the definition of ``replacement 
of water supply'' at 30 CFR 701.5 and our comments and Pennsylvania's 
responses on the proposed Pennsylvania program, we recognize that the 
definition of ``replacement water supply'' does not specify how 
equivalency is to be determined and that there may be alternate 
approaches to determining whether a water supply has been appropriately 
replaced. As discussed more fully below, we considered whether actual 
and reasonably foreseeable use, including potential uses, would be a 
means of determining equivalency. We then reviewed the degree to which 
Pennsylvania's ``adequate quantity'' standard under 25 Pa. Code 
89.145a(f)(3)(i) and (ii) would meet actual and reasonably foreseeable 
use. Finally, we examined the degree to which the Pennsylvania standard 
would ensure that the replacement water source would be equivalent to 
the premining source, and the replacement delivery system would be 
equivalent to the premining delivery system.

    Use as a Standard: The preamble to the definition of ``replacement 
of water supply'' at 30 CFR 701.5 contains various analyses as to the 
scope of the replacement requirement. The following discussion 
foreclosed basing replacement supply quantity on just the actual 
premining use:

    Commenters argue that the definition should state that the 
replacement water supply need only provide the quantity and quality 
required for actual use. * * * OSM maintains that the provision of 
water quality and quantity equivalent to that of premining supplies 
is plainly required by the term ``replacement'' [in EPAct].

60 FR 16726.
    Additional guidance is found in the preamble at 60 FR 16727, which 
specifies that ``[w]here the spring or well also serves other purposes, 
the quantity of the replacement supply only needs to be equivalent to 
the premining water supply for drinking, domestic, or residential 
use.'' Thus, absolute equality to the premining quantity was not deemed 
to be required in all instances.
    We then find a discussion on the requirement that replacement of 
the water supply must account for uses by future owners. When we were 
discussing the option of not replacing the water delivery system, we 
said that an equivalent water source must be available for development 
``so that the current owner or his or her successor could utilize the 
water if desired in the future.'' 60 FR 16727 (emphasis added).
    Finally, to harmonize these statements, we look to yet another 
preamble statement, which appears to endorse consideration of the level 
of both actual and reasonably foreseeable use as a means of determining 
equivalency. In discussing the portion of the definition that provides 
an option under which the permittee would not need to replace the water 
supply delivery system, the preamble states: ``This provision 
[identification of a suitable alternative water source] would ensure 
that all coal mining operations must be conducted so that water 
resources remain to support the existing and proposed use of the 
land.'' 60 FR 16727. In the context of the definition, ``proposed use'' 
refers to the approved postmining land use. Although the postmining 
land use requirements of 30 CFR 817.133 generally do not apply to areas 
overlying underground workings, since those areas usually do not lie 
within the permit area, the Pennsylvania term ``any reasonably 
foreseeable uses'' is the functional equivalent of the term postmining 
land use for lands outside the permit area. Although this statement was 
not specifically addressed at the issue of interpreting equivalency, it 
does indicate contemplation and acceptance of the standard proposed by 
Pennsylvania.
    Since the definition of ``replacement of water supply'' at 30 CFR 
701.5 does not specify how equivalency is to be determined, OSM finds 
that it can approve a water supply replacement provision that relies on 
actual and reasonably foreseeable use as a standard as no less 
effective than the federal rules with respect to water quantity.
    The Pennsylvania ``Adequate Quantity'' Standard: The Pennsylvania 
statute at section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)), requires that a 
water supply adversely impacted by an underground mine be replaced 
``with a permanent alternate source that adequately serves the 
premining uses of the water supply or any reasonably foreseeable uses 
of the water supply.'' The implementing regulations at 25 Pa. Code 
89.145a(b) include identical language. As noted above, Pennsylvania's 
regulations further define a restored or replaced supply as adequate in 
quantity if (i) it delivers the

[[Page 67012]]

amount of water to satisfy the water user's needs and the demands of 
any reasonably foreseeable uses or (ii) is a public water supply system 
that delivers the amount of water to satisfy the water user's needs and 
the demands of any reasonably foreseeable uses. 25 Pa. Code 
89.145a(f)(3)(i) and (ii). Pennsylvania limits ``public water supply 
systems'' to those defined at 25 Pa. Code 89.5.
    Responding to OSM concerns on 25 Pa. Code 89.145a(f)(3)(i), 
Pennsylvania commented that the replacement water supply ``must be 
capable of satisfying the premining uses * * *  and, in addition, any 
foreseeable uses the landowner or water user had intended to develop.'' 
With regard to public water supplies as a possible replacement, 
Pennsylvania stated that ``[a] connection to a public water supply 
system is a reasonable means of replacement if the public water supply 
system can satisfy the water user's existing and reasonably foreseeable 
needs and is adequate for the purposes served.'' 28 Pennsylvania 
Bulletin (Pa.B.) 2777.
    To the extent that Pennsylvania's letter and the Pennsylvania 
Bulletin language could be read to indicate that the user must have 
plans to demonstrate reasonably foreseeable uses of a water supply or 
is limited to the current user, we disagree with these interpretations. 
The proper standard is whether there is a reasonably foreseeable use 
for the premining capacity, not whether actual plans exist or the uses 
are limited to the current owner. Actual plans or the current owner's 
uses (existing and foreseeable) are merely two ways to determine 
foreseeable uses. As previously stated, the replaced water supply must 
take into account not only the actual use but also any potential uses 
by a future owner. As a consequence, OSM is approving the language 
under section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)), and 25 Pa. Code 
sections 89.145a(b), and 89.145a(f)(3)(i) and (ii), to the extent that 
Pennsylvania both interprets and implements the provisions consistent 
with the definition of ``replacement of water supply'' at 30 CFR 701.5 
where an equivalent replacement would be achieved by meeting the 
premining uses and any reasonably foreseeable uses of the supply. 
Therefore, OSM is requiring Pennsylvania to amend 89.145a(b) and 
89.145a(f)(i) and (ii), if necessary, to ensure that the phrase 
``satisfy the water user's needs and the demands of any reasonably 
foreseeable uses' is consistent with our discussion concerning the 
actual use and the reasonably foreseeable use of the supply.
    Equivalent Replacement Source and Delivery System: The definition 
of ``replacement of water supply'' at 30 CFR 701.5 and the 
corresponding preamble make it clear that ``replacement includes 
provision of an equivalent delivery system.'' 60 FR at 16726. As 
previously noted, the preamble discussion related to waiving the 
replacement of delivery systems not needed for the postmining land use 
require that the permittee must demonstrate the availability of a water 
source equivalent to premining quality and quantity. 60 FR at 16727. As 
a consequence, a replacement supply must be equivalent to the premining 
supply both in terms of a delivery system and in terms of water 
quantity of the source.
    Pennsylvania's proposed requirements do not specifically address 
EPAct requirements that a replacement supply must include the provision 
of an equivalent water delivery system and an equivalent water source 
in terms of quantity. Under 25 Pa. Code sections 89.145a(f)(1) and 
89.145a(f)(4), Pennsylvania required that the replacement supply 
include a delivery system and proposed criteria for determining the 
adequacy of permanently restored supplies. While the proposed standards 
would address supply permanence, reliability, maintenance, and owner 
control and accessibility, we are concerned that those criteria, alone, 
could still require supply owners to accept water supply delivery 
systems that are not equivalent to the premining system to compensate 
for a replacement source that is not equivalent to the quantity of the 
premining source. A water delivery system equal to the premining system 
is crucial to protecting the supply owner from the practice of 
installing an unconventional delivery system to make up for a source 
that does not provide an equivalent quantity of water. Examples of such 
systems would be the placement of in-ground storage tanks to offset 
well or spring yields that, alone, do not provide an equivalent 
quantity of water, and the development of an elaborate delivery system 
from multiple low yield wells.
    In conclusion, the Director is approving section 5.1(a)(1) (52 P.S. 
1406.5a(a)(1)), which requires that a water supply adversely impacted 
by an underground mine be replaced ``with a permanent alternate source 
which adequately serves the premining uses of the water supply or any 
reasonably foreseeable uses of the water supply,'' to the extent that 
Pennsylvania both interprets and implements the provisions at section 
5.1(a)(1) (52 P.S. 1406.5a(a)(1)), 25 Pa. Code 89.145a(b), and 25 Pa. 
Code 89.145a(f) consistent with the definition of ``replacement of 
water supply'' at 30 CFR 701.5 where an equivalent replacement would be 
achieved by meeting the premining uses and any reasonably foreseeable 
uses of the supply. Under the Pennsylvania program, an equivalent 
delivery system or source would be those that adequately serve the 
premining uses of the water supply or any reasonably foreseeable uses 
of the water supply. As previously noted above, OSM is requiring 
Pennsylvania to amend 25 Pa. Code sections 89.145a(b) and 
89.145a(f)(3)(i) and (ii), if necessary, to ensure that the phrase 
``satisfy the water user's needs and the demands of any reasonably 
foreseeable uses' is consistent with our discussion concerning the 
actual use and the reasonably foreseeable use of the supply. Finally, 
OSM will evaluate implementation of the requirements through the 
oversight process to determine if the processes used by Pennsylvania to 
determine current owner's needs and demands of any reasonably 
foreseeable use are consistent with the definition of ``replacement of 
water supply'' at 30 CFR 701.5.
    With respect to replacement timing, section 5.1(a)(1) (52 P.S. 
1406.5a(a)(1)) requires restoration of water supplies but does not 
place an obligation on the permittee to do so promptly. In addition, 
section 5.2 (52 P.S. 1406.5b) and Pennsylvania regulation 25 Pa. Code 
89.146a, as proposed, serve to condition replacement timing based upon 
supply type, location and property owner notice to the permittee. 
Section 720(a)(2) requires the prompt replacement of protected water 
supplies. The federal rules require prompt replacement of a water 
supply on ``both a temporary and permanent basis equivalent to 
premining quantity and quality.'' (30 CFR Secs. 701.5 and 817.41(j)). 
To ensure that all supplies are guaranteed prompt replacement 
consistent with EPAct, the Director is requiring Pennsylvania to amend 
this section to require the prompt replacement on both a temporary and 
permanent basis of all protected water supplies. In requiring the 
amended language under this section, the Director expects that 
enforcement actions requiring prompt replacement will at a minimum be 
handled in conformance with chapter 86, subchapter H (Enforcement & 
Inspection), which requires citation and abatement of violations within 
a reasonable time.
    Section 5.1(a)(2) (52 P.S. 1406.5a(a)(2)). This section and the

[[Page 67013]]

implementing regulations at 25 Pa. Code 89.145a(f)(2) that include 
identical language, provides that a restored or replaced water supply 
will be deemed adequate when it differs in quality from the premining 
water supply, if it meets the Pennsylvania Safe Drinking Water Act 
(PSDWA) (35 Pa. Stat. Sections 750.1-750.20), or is comparable to the 
premining water supply when that water supply did not meet these 
standards.
    By letter dated June 21, 1999, we originally notified Pennsylvania 
that its statute and regulations were less effective than the federal 
definition of ``replacement of water supply'' in 30 CFR 701.5. That 
definition requires that a replacement supply be ``equivalent to 
premining quantity and quality.''
    We have reconsidered the position enunciated in our June 21, 1999, 
letter after reviewing a letter dated March 9, 1999, from then--OSM 
Director Kathy Karpan to Greg Conrad of the Interstate Mining Compact 
Commission (IMCC). In that letter, Director Karpan provided guidance 
for the development and evaluation of State program amendments 
implementing EPAct.
    Our definition of ``replacement of water supply'' in 30 CFR 701.5 
requires that the replacement supply be equivalent in quantity and 
quality to the premining supply. The federal rules do not define what 
``equivalent'' means with respect to water quality. However, the March 
letter to the IMCC stated that, with respect to quality, we would 
consider the equivalency requirement to be met if the replacement water 
supply was of a ``quality suitable for all current and reasonably 
foreseeable uses.'' The letter also notes that our regulations do not 
require replacement of the source of the premining water supply. Thus, 
the letter implies that ``equivalent'' does not translate to 
``identical.'' Instead, it allows some differences in chemical 
composition, as long as the replacement supply remains suitable for the 
uses associated with the premining water supply and any reasonably 
foreseeable uses.
    The preamble to our regulations clearly supports this approach by 
stating that our regulations do not require restoration of the source 
of the premining water supply. Instead, according to the preamble, 
replacement of the water supply may be accomplished through provision 
of an alternate source such as a public water supply or by pipeline 
from another location. See 60 FR 16727 and 16733. Since these 
alternative sources most likely would not be precisely identical to the 
premining source in terms of water chemistry, the inference is that 
differences in chemical composition are acceptable as long as the 
premining and replacement supplies are equivalent in terms of 
suitability for use.
    The Pennsylvania regulations at 25 Pa. Code 89.145a(b), when read 
in combination with 25 Pa. Code 89.145a(f)(2), require that replacement 
supplies meet the standards of the PSDWA whenever the quality of the 
replacement supply differs from that of the premining supply. The only 
exception occurs when the premining supply does not meet PSDWA 
standards, in which case the replacement supply must be at least 
``comparable to the premining water supply.'' The rules do not specify 
how comparability will be determined, but 25 Pa. Code 89.145a(a)(1) 
requires that operators conduct premining water supply surveys prior to 
mining within 1000 feet of the water supplies. Paragraphs (ii) and 
(iii) of 25 Pa. Code 89.145a(a)(1), require that the surveys assess the 
existing and reasonably foreseeable uses of the water supply and the 
chemical and physical characteristics of the water, including total 
dissolved solids (or specific conductance), pH, total iron, total 
manganese, hardness, sulfates, total coliform, acidity, and alkalinity.
    The Director finds that Pennsylvania's provisions are no less 
effective than the federal requirements concerning the quality of 
replacement water supplies. We are approving Pennsylvania's rules in 
this regard because we interpret our regulations as meaning that, with 
respect to water quality, an equivalency determination can be made in 
terms of suitability for particular uses, rather than requiring that 
the chemical composition of the replacement supply be identical to that 
of the premining supply. Pennsylvania's public drinking water systems 
must meet the requirements of the PSDWA. As Pennsylvania noted in a 
letter dated June 1, 2000, these requirements are intended to ensure 
that water delivered by these systems is not only safe, but also 
palatable and esthetically acceptable. The PSDWA includes maximum 
contaminant levels for iron, manganese, and sulfates, three parameters 
that are of major significance in the coalfields.
    Of the three types of water supplies protected under EPAct 
(drinking, domestic, and residential), drinking water requires the 
highest standards. Since Pennsylvania's regulations require that water 
supplies that meet PSDWA standards be replaced with supplies of at 
least that quality, they satisfy the quality aspect of the federal 
water supply replacement requirements.
    Where premining water supplies do not meet PSDWA standards, 
Pennsylvania's regulation is also no less effective than the federal 
definition of ``replacement of water supply'' in 30 CFR 701.5 with 
respect to water quality because the state rule requires replacement 
with supplies of comparable quality. ``Comparable'' is a synonym for 
``equivalent,'' which is the standard in the Federal rule.
    Section 5.1(a)(3) (52 P.S. 1406.5a(a)(3)). This section deals with 
the definition of ``water supply.'' Pennsylvania's definition includes 
any existing source of water used for domestic, commercial, industrial 
or recreational purposes or for agricultural purposes or which serves 
any public building or any noncommercial structure customarily used by 
the public. Pennsylvania's statutory definition is substantively 
identical to its regulatory definition found at 25 Pa. Code 89.5. The 
federal definition of ``drinking, domestic or residential water 
supply'' at 30 CFR 701.5 includes water received from a well or spring 
used for ``direct human consumption or household use.'' Clearly, 
Pennsylvania's definition is not identical to the federal definition. 
Nonetheless, Pennsylvania's definition includes any existing source 
used for domestic water, which Pennsylvania has stated would ``include 
all water supplies covered under the Federal program.'' 28 Pa.B. 2767.
    Even though Pennsylvania's definition covers the same water 
sources, we expressed a concern with the Pennsylvania definition 
because of preamble language in the Pennsylvania Bulletin that stated 
that the ``Board does not wish to include language which could be 
interpreted to include investor-owned water transmission and 
distribution mains which are rightfully classified as utilities. The 
Board notes that this definition does not limit in any way the duty of 
an operator to provide pumping equipment and connecting piping * * *'' 
(28 Pa.B. 2767). Since the federal definition of ``drinking, domestic 
or residential water supply'' includes ``any appurtenant delivery 
system,'' we asked Pennsylvania to clarify what is meant by 
``connecting piping'' and ``investor-owned water transmission and 
distribution mains which are rightfully classified as utilities' in our 
letter dated June 21, 1999. We were concerned about how the Board's 
intention not to protect investor-owned water transmission and 
distribution mains, which are rightfully classified as utilities, would 
affect the replacement of appurtenant delivery systems protected under 
EPAct.

[[Page 67014]]

    PADEP replied that the preamble discussion was made to illustrate 
the difference between connections from a well or spring to a residence 
and connections made to a water main that is part of a public water 
supply system. Connections from a well or spring are permanent affixed 
appurtenant structures that must be repaired by the mine operator if 
damaged. PADEP further noted that damage to a water main and that part 
of the connecting piping that is owned by the water company would be 
covered under its regulation at 25 Pa. Code 89.142a(g) relating to 
protection of utilities. In this case, the damage is likely to be 
repaired by the water company pursuant to an agreement with the mine 
operator. PADEP concluded that if the property owner owns the 
connecting piping, it would be regarded as a permanently affixed 
appurtenant structure, which the mine operator would be required to 
repair.
    Based on the preamble language of the Pennsylvania Bulletin and its 
explanation addressed to our concerns, we find Pennsylvania's 
definition of water supply no less effective than the federal 
regulation. The Director is approving this section.
    Section 5.1(b) (52 P.S. 1406.5a(b)). This section indicates an 
operator is not liable for restoration or replacement of a water supply 
if a landowner's claim of contamination, diminution or interruption is 
made more than two years after the supply was affected. In our letter 
to Pennsylvania dated June 23, 2000, we noted that EPAct provides that 
an operator is responsible for restoration or replacement of all water 
supplies used for domestic, drinking or residential use. We noted that 
the proposed changes to the Pennsylvania program are not as effective 
as the corresponding federal regulations because some water supplies 
that would be protected under EPAct may be excluded from protection 
simply because a user does not file a claim within two years. The 
federal regulations require a permittee to meet all applicable 
performance standards during the permit term, including the replacement 
of water.
    In its letter to us dated July 14, 2000, Pennsylvania noted that 
the two-year time limit for reporting water supply impacts is 
explicitly stated in BMSLCA. Pennsylvania has observed no cases to date 
where this limitation has been used as a basis for denying water supply 
restoration or replacement. Additionally, Pennsylvania noted that since 
federal SMCRA has no statute of limitations, OSM cannot conclude 
Pennsylvania's provisions are less effective than the federal 
regulations. Pennsylvania asserts that when a federal statute contains 
no limitation provisions, the most appropriate statute of limitations 
provided by state law should be applied unless there is a relevant 
federal statute of limitations or the state law would frustrate or 
interfere with the implementation of national policies. Pennsylvania 
cited a court case (Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 
1521 (9th Cir. 1987)) that it believes to be relevant to its position.
    Pennsylvania further states that since it notifies property owners 
above underground mines of their rights and the mine operator's 
obligations should underground mining adversely affect their water 
supplies, that people are unlikely to make do without water for two 
years without making a claim. Pennsylvania believes that this approach 
serves to ensure that water supply claims will be filed before the 
statute of limitations expires, which will effectively implement the 
national policy of requiring underground mine operators to address 
these impacts.
    Finally, Pennsylvania noted that this section of BMSLCA is not 
contrary to 30 CFR 700.11(d) because that section of the federal 
regulations is purely discretionary and not required to be part of a 
state program. Section 700.11(d) authorizes, but does not require, 
regulatory authorities to terminate jurisdiction over the reclaimed 
site of a completed surface coal mining and reclamation operation. 
Federal law defines the term ``surface coal mining and reclamation 
operations'' as surface coal mining operations and all activities 
necessary or incidental to the reclamation of surface coal mining 
operations. The term ``surface coal mining operations'' is interpreted 
by OSM to not include subsidence, etc. resulting from underground coal 
mining. Consequently, water supplies affected by underground mining as 
well as restoration or replacement of such water supplies are not 
activities subject to 700.11(d).
    The Director is not approving this portion of the BMSLCA for 
several reasons. First, even though there have been no cases reported 
to date where this provision has been used to deny restoration or 
replacement of affected supplies, it does not mean that it will not 
happen. If this provision were ever used to deny coverage that would 
otherwise have been provided under federal regulations, it would be 
less effective than the federal requirements.
    Second, we disagree that the Ninth Circuit case cited by 
Pennsylvania is applicable. The proposition held by the court of 
appeals and cited by Pennsylvania states that when a federal statute 
contains no limitations provisions, an applicable state statute of 
limitations should be applied, unless there is an analogous federal 
statute of limitations, or the state law would frustrate or interfere 
with national policies. The Ninth Circuit case is the general rule 
applicable to litigation involving private parties. However, this 
general rule and its exceptions do not control government actions 
brought to vindicate public interests. See, Dole v. Local 427, 
International Union of Electrical, Radio and Machine Workers, 894 F.2d 
607 (3d Cir. 1990). The general rule that applies to government actions 
is that ``no statute of limitations will be applied in civil actions 
brought by the Government, unless Congress explicitly imposes such time 
limitations.'' Dole, 894 F.2d at 610. The court of appeals in Dole held 
that no statute of limitations applies to the government so long as a 
public purpose is served by its action. While section 5.1(b) (52 P.S. 
1406.5a(b)) of BMSLCA will benefit a private individual, this is no 
different than the situation in Dole, where the Department of Labor 
sued to enforce individual and public rights. The fact that a public 
suit may benefit a private individual does not change the application 
of the general rule for government actions. Under the provisions of the 
BMSCLA, it will be Pennsylvania that will enforce the requirement that 
the operator replace an affected water supply. The requirement to 
replace a water supply not only serves a private purpose, it also 
serves a public purpose as well. The replacement requirement not only 
protects the current owner but also his or her successor and the 
community by preserving property values. 60 FR at 16727.
    Further, a time limit on water claims is adverse to the general 
scheme of SMCRA. For example, this section would limit Pennsylvania's 
ability to take enforcement actions and would interfere with the 
administrative methods established by sections 517 and 521 of SMCRA 
since it could be difficult to determine when the supply was initially 
affected. Since every state could have a different time period, this 
section is contrary to the public policy of section 102(a) of SMCRA 
that established a nationwide program and with section 101(g) of SMCRA. 
It could also preclude some citizen suits because in some situations a 
citizen wouldn't know that Pennsylvania wasn't taking action until the 
two years elapsed. Additionally, if a claim for water damage were not 
made within two years from the date the supply was affected,

[[Page 67015]]

Pennsylvania would not consider it a violation. Since it is not a 
violation, this would prevent Pennsylvania from holding operators 
responsible for damage to a water supply.
    We disagree with Pennsylvania that this time limitation is no less 
effective than the federal rules. It is contrary to section 505(b) of 
SMCRA, which prohibits any state program from having state laws or 
regulations that are inconsistent with SMCRA. The statute of 
limitations would seem to insure that at some point a water supply 
would not be restored or replaced. Failure to restore or replace a 
water supply is in direct contrast with the purposes of EPAct and the 
federal regulations that require, without a time limit, the restoration 
or replacement of these supplies. Finally, since our decision is based 
on the above, we feel it is unnecessary to address Pennsylvania's 
interpretation of the federal regulations describing termination of 
jurisdiction. As a result, the Director is not approving section 5.1(b) 
(52 P.S. 1406.5a(b)) of the BMSLCA.
    Section 5.2(a)(1) (52 P.S. 1406.5b(a)(1). This section requires a 
landowner to contact the operator with a claim of water loss or 
contamination. The section also requires the operator to investigate 
such claims with reasonable diligence. In our letter to Pennsylvania of 
June 21, 1999, we noted that this section appeared to be less effective 
than the federal regulations because the federal rules and statute do 
not require the landowner or water user to first contact the operator. 
We asked Pennsylvania to explain how this requirement affects a 
landowner's or water user's rights or PADEP's responsibilities to 
initiate action under citizen complaint procedures.
    In its response of June 1, 2000, PADEP indicated that requiring the 
landowner to contact the operator has not been a problem during the 
first five years of the program's implementation. Pennsylvania believes 
that requiring the landowner to contact the operator saves time by 
allowing the owners to describe their problem to the operator and to 
schedule access to their property for the operator.
    The proposal by Pennsylvania to require landowners to notify 
operators with a claim of water loss was carefully considered by the 
Director relative to the requirements for water supply replacement (30 
CFR 817.41(j)) and the requirements for addressing complaints by 
citizens (30 CFR part 842). It is important to note that under both the 
federal and the proposed Pennsylvania requirements, underground mining 
that results in the contamination, diminution, or interruption of a 
water supply is not prohibited. Once a water supply is affected, the 
federal requirements require prompt replacement while Pennsylvania's 
proposed requirements allow operators to delay permanent replacement 
for up to at least three years. Specifically at issue under section 
5.2(a)(1) (52 P.S. 1406.5b(a)(1)) of the Pennsylvania statute is 
whether the requirement for landowners to notify operators with a claim 
of water loss is no less effective than federal requirements.
    EPAct and 30 CFR 817.41(j) are silent on how the operator is 
notified of the water loss. Under section 720 of SMCRA, permittees are 
responsible for prompt replacement regardless of whether they are 
contacted by property owners or by the regulatory authority in cases 
where the property owner failed to do so. Under section 5.2(a)(1) (52 
P.S. 1406.5b(a)(1)) of the BMSLCA, Pennsylvania has elected to 
establish a water loss notification procedure that requires the 
property owner to contact the operator. The section also requires that 
the operator shall, with reasonable diligence, investigate the loss. 
The proposed changes to the Pennsylvania program are silent on any 
procedures that will be followed in the event that landowners choose to 
notify the Department rather than the operator. However, under section 
5.2(b)(2) (52 P.S. 1406.5b(b)(2)) and 25 Pa. Code 89.146a(b), 
Pennsylvania conditioned its ability to require temporary water within 
24 hours of issuance of an order to those cases where the landowner 
falls within the rebuttable presumption area and notified the operator.
    The Director finds section 5.2(a)(1) (52 P.S. 1406.5b(a)(1)) of the 
BMSLCA is not inconsistent with the requirements of SMCRA and the 
federal regulations and is approving it. The approval is granted 
because even though section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) and 25 
Pa. Code 89.146a(b) act to limit property owner access to the 24-hour 
temporary supply standard under section 5.2(a)(2) (52 P.S. 
1406.5b(a)(2)), the Director's required amendment of section 5.1(a)(1) 
(52 P.S. 1406.5a(a)(1)) of the BMSLCA will insure the prompt 
replacement of all adversely affected water supplies (see required 
amendment discussion under section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)). 
As a consequence, property owners that do not directly notify the 
operator may not receive a temporary supply within 24 hours pursuant to 
section 5.2(a)(2) (52 P.S. 1406.5b(a)(2)). However, they will be 
guaranteed a prompt replacement consistent with EPAct because of the 
amendment required by the Director at section 5.1(a)(1) (52 P.S. 
1406.5a(a)(1)).
    Section 5.2(a)(2) (52 P.S. 1406.5b(a)(2)). This section requires 
operators to provide a temporary water supply to landowners with water 
supply problems within the rebuttable presumption area within 24 hours. 
However, this section does not address temporary water supply 
requirements for those landowners whose water supplies are outside the 
presumption area. The federal rules require all protected water 
supplies to be promptly replaced on both a temporary and permanent 
basis, regardless of location.
    Pennsylvania's response to OSM's issue letter of June 21, 1999, 
stated (see finding for 25 Pa. Code 89.145a(e)(1)) that section 5.2 of 
the BMSLCA provided for temporary water replacement if the affected 
water supply is outside the rebuttable presumption area. Pursuant to 
5.2, the operator's responsibility does not begin until after the PADEP 
issues an order. This is contrary to SMCRA and the federal regulations 
that indicate there is an obligation on the permittee to replace water 
on a temporary and permanent basis before there is enforcement by the 
regulatory authority (see 720(a)(2) of SMCRA and 30 CFR 817.41(j)). As 
a condition of a permit, a permittee must comply with all the 
conditions of the permit, all applicable performance standards and the 
requirements of the regulatory program (see 30 CFR 773.17(c)). The 
requirement to promptly replace protected water supplies is a 
performance standard. Once the operator is notified of the water 
problem (in Pennsylvania, by the landowner or the water user), the 
operator is obligated to replace the water. This occurs before there is 
enforcement by the regulatory authority. Enforcement by the regulatory 
authority commences when there is a violation of the statute, 
regulations, and/or applicable program. Accordingly, the Director is 
approving section 5.2(a)(2) (52 P.S. 1406.5b(a)(2)) for those water 
supplies within the rebuttable presumption area that qualify for the 
24-hour temporary supply replacement standard because this portion of 
the statute is consistent with the federal regulations at 30 CFR 701.5 
and 817.41(j) that require prompt replacement of water supplies and 
with 30 CFR 773.17(c). However, because there is no requirement in 
BMSLCA to provide temporary water in a prompt manner for those water 
supplies that lie outside the rebuttable presumption area, or otherwise 
fail to qualify for the 24-hour temporary supply replacement standard, 
the Director is requiring Pennsylvania to amend section 5.1(a)(1)

[[Page 67016]]

(52 P.S. 1406.5a(a)(1)) requiring the prompt replacement of water 
supplies, including temporary water, to all landowners whose water 
supply has been impacted by underground mining.
    Section 5.2(a)(3) (52 P.S. 1406.5b(a)(3)). This section provides 
that if a temporary water supply is not provided within 24 hours, 
PADEP, after notice by the landowner or water user, shall order the 
operator to provide temporary water within 24 hours. The operator shall 
notify the Department of any claim of contamination, diminution or 
interruption made to it by a landowner or water user and its 
disposition. This section only applies to those supplies falling within 
the rebuttable presumption zone as required by section 5.2(c) (52 P.S. 
1406.5b(c)).
    The Director is approving this section because it provides the 
Department with specific authority to issue orders to require temporary 
water within 24 hours for those supplies that meet the requirements of 
section 5.2(c) (52 P.S. 1406.5b(c)), and where the operator has refused 
to provide the supply. This is consistent with both 30 CFR 817.41(j), 
which requires prompt replacement of water supplies, and the 
enforcement procedures of Part 843. Once an operator refuses to replace 
a protected water supply, a violation has occurred and the regulatory 
authority can then enforce this replacement requirement with an order. 
For those supplies that meet section 5.2(c) (52 P.S. 1406.5b(c)), this 
enforcement authority will assist the Department in securing prompt 
replacement. It should be noted that the Director is requiring 
Pennsylvania to amend section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) to 
require prompt replacement of all supplies covered by EPAct. In 
requiring the amended language under section 5.1(a)(1) (52 P.S. 
1406.5a(a)(1)), the Director expects that those supplies that do not 
meet the conditions of section 5.2(a)(2) and (a)(3) (52 P.S. 
1406.5b(a)(2) and (3)) will be addressed by the Department consistent 
with chapter 86, subchapter H (Enforcement & Inspection), which 
requires citation, and abatement, of violations within a reasonable 
time.
    Section 5.2(b)(1) (52 P.S. 1406.5b(b)(1)). This section provides 
that a landowner may notify the Department if an alternate source has 
not been provided or if an operator ceases to provide an alternate 
source and requests an investigation be conducted. While there is no 
direct federal counterpart to this section, the Director is approving 
it because it is not inconsistent with the citizen complaint procedures 
in the approved Pennsylvania program (see 49 FR 10253-58) or 30 CFR 
842.12, which allow citizens to bring their complaints to the 
regulatory authority.
    Section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)). This section provides 
that within 10 days of notification the Department will investigate 
claims and within 45 days make a determination if the operator affected 
the water supply. The Department can then issue orders for replacement. 
This section also allows three years to pass before orders requiring a 
permanent water supply are issued. In our letter to Pennsylvania dated 
June 21, 1999, we indicated that this section appeared to be less 
effective than the federal rules because it does not require that water 
supplies be promptly replaced and that it would allow three years to 
elapse before the Department issues an order to provide a permanent 
alternate source of water. We further noted that three years is 
inconsistent with federal SMCRA 720(a)(2) requiring prompt replacement 
of drinking, domestic or residential water supplies.
    In their letter to us dated June 1, 2000, Pennsylvania indicated 
that the time periods of 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) relate to 
PADEP actions. Pennsylvania noted that this section only pertains to 
situations where mine operators are apparently failing to fulfill their 
obligations. In these cases, PADEP may be required to establish proof 
of causation and operator liability before taking appropriate action. 
Pennsylvania believes this section of BMSLCA is more stringent because 
it requires the regulatory authority to act within specified time 
periods while the federal regulations set no deadlines for follow up 
action by the regulatory authority. With regard to the three-year 
issue, Pennsylvania responded that the three-year period is consistent 
with scientific literature that indicates if a water supply is going to 
recover it will usually do so within three years of impact. Finally, 
Pennsylvania noted that, in some cases, an attempt at permanent 
restoration in a shorter time may not be prudent because of the 
potential impacts of additional mining that will take place in the 
future.
    As we stated in the preamble to the federal EPAct rules, ``existing 
citizen complaint procedures are adequate and appropriate to address 
surface owner complaints of subsidence damage.'' (60 FR at 16735). 
While this statement was made in the context of damage to structures, 
it applies equally to water loss complaints. The proposal by 
Pennsylvania to provide a water loss claims investigation procedure for 
affected property owners was carefully considered by the Director 
relative to the existing requirements for addressing complaints by 
citizens under 30 CFR Part 842. Currently, the approved Pennsylvania 
program regarding citizen complaint investigations and enforcement 
provides that if an inspection is made, the Department will notify the 
citizen within 10 days of completion of the inspection of the results. 
If no inspection is made, the Department will notify the citizen within 
15 days of receipt of the complaint. Pennsylvania's approved citizen 
complaint rules are consistent with 30 CFR 842.12 and allow latitude in 
determining what constitutes the point at which an inspection is 
complete to allow for the collection of necessary data (see 49 FR 
10253-58). The Director recognizes that, in certain cases, citizen 
complaint inspection duties could be completed prior to the 45 days 
specified in section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)). Under existing 
citizen complaint rules, once an inspection is completed, Pennsylvania 
has 10 days to describe its enforcement action or lack thereof. 
However, under the proposed provision, the completion of inspection 
duties may occur in a short time, e.g. two days, but Pennsylvania would 
have longer than 10 days to notify the citizen of its inspection 
results, e.g. 43 days. This is inconsistent with Pennsylvania's 
existing rules and the federal rules regarding time requirements for 
responding to citizen complaints. To be consistent with the federal 
rules, Pennsylvania must notify the citizen of its decision within 10 
days of completing all the inspection duties. Therefore, the Director 
is approving this portion of section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) 
to the extent that it is consistent with, or more timely than, its 
citizen complaint procedures and is requiring Pennsylvania to amend its 
program to the extent the time frames are longer than its citizen 
complaint procedures.
    The Director is not approving the portion of this provision that 
states ``* * * where the contamination, diminution or interruption does 
not abate within three years of the date on which the supply was 
adversely affected.'' As noted in the preamble to the federal rules, a 
permittee should connect the user to a satisfactory permanent water 
supply within two years of notification (60 FR at 16727). Pennsylvania 
makes reference to technical guidance that supports its standard that a 
permanent water supply should be replaced within three years. However, 
Pennsylvania failed to submit such technical information and OSM

[[Page 67017]]

knows of no technical guidance to support Pennsylvania's assertion. 
Section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) allows three years to elapse 
without issuance of an order requiring permanent restoration or 
replacement. The process of ordering a permanent restoration or 
replacement does not start until the three years expired. This means 
that permanent restoration or replacement could go well beyond three 
years, which is clearly not envisioned by OSM in drafting the federal 
rules. Pennsylvania's statute delays permanent replacement by up to 50% 
over the federal guidelines. Allowing an operator up to three years to 
replace a water supply is not a ``prompt'' replacement, thus it is less 
stringent than 720(a)(2) of SMCRA.
    Section 5.2(c) (52 P.S. 1406.5b(c)). This section provides that an 
underground mine operator is presumed to be responsible for 
contamination, diminution or interruption of water supplies within a 
rebuttable presumption area. The operator may successfully rebut the 
presumption if the landowner denied the operator access to the property 
to conduct a premining survey of the water supply.
    There is no federal regulation that prohibits the state from 
enacting a rebuttable presumption for water. In fact, by finding that 
operators are presumed responsible for replacement of water supplies 
within the presumption area, this portion of the statute will assist in 
insuring that operators are promptly informed of their obligation to 
replace affected supplies and will assure they promptly provide 
emergency and temporary water. Thus, the Director finds that this 
portion of the program is in accordance with Sec. 720(a)(2) of SMCRA, 
which requires the prompt replacement of a protected water supply.
    Section 5.2(d) (52 P.S. 1406.5b(d)). The full text of the language 
of this section is as follows.

    Unless the presumption contained in subsection (c) applies, a 
landowner, the department or any affected user asserting 
contamination, diminution or interruption shall have the burden to 
affirmatively prove that underground mining activity caused the 
contamination, diminution or interruption. Wherever a mine operator, 
upon request, has been denied access to conduct a premining survey 
and the mine operator thereafter served notice upon the landowner by 
certified mail or personal service, which notice identified the 
rights established by sections 5.1 and 5.3 and this section, was 
denied access and the landowner failed to provide or authorize 
access within ten days after receipt thereof, then such affirmative 
proof shall include premining baseline data, provided by the 
landowner or the department, relative to the affected water supply.

    The amendment provides that the Department, or a landowner outside 
the rebuttable presumption area, has the burden of proof in claiming 
that a water supply has been contaminated, interrupted or diminished. 
This is consistent with enforcement actions where the regulatory 
authority has the initial burden, so the Director is approving this 
language. However, the last sentence of this portion of the amendment 
requires that the burden of proof for landowners who deny access to an 
operator to conduct a premining survey, must include premining baseline 
data as supplied by the landowner or the Department. The portion of the 
amendment requiring premining baseline data as a condition of 
establishing burden of proof makes it less effective than the federal 
regulations at 30 CFR 817.41(j). This section of the federal 
regulations requires the baseline hydrologic information required in 30 
CFR 780.21 and 784.14 to be used to determine the impact of mining 
activities upon the water supply. Such information is to be supplied by 
the applicant. The proposed amendment requires the Department, or 
landowner, to provide data that is to be supplied by the operator in 
the permit application. Therefore, the following portion of the 
amendment is less effective than the federal regulations: ``Wherever a 
mine operator, upon request, has been denied access to conduct a 
premining survey and the mine operator thereafter served notice upon 
the landowner by certified mail or personal service, which notice 
identified the rights established by sections 5.1 and 5.3 and this 
section, was denied access and the landowner failed to provide or 
authorize access within 10 days after receipt thereof, then such 
affirmative proof shall include premining baseline data, provided by 
the landowner or the Department, relative to the affected water 
supply.'' The Director is not approving this language.
    Section 5.2(e)(1) (52 P.S. 1406.5b(e)(1)). This section provides 
that a mine operator can be relieved of liability for affecting a 
public or private water supply when the contamination, diminution or 
interruption of the supply existed prior to the mining activity. There 
is no direct federal counterpart to this provision. However, the 
federal definition of ``replacement of water supply'' at 30 CFR 701.5, 
requires the replacement of protected water supplies whenever the 
supplies were affected by coal mining operations. If all the 
contamination, diminution or interruption existed prior to the start of 
coal mining operations, then the supply was not affected by the coal 
mining operations. If additional contamination, diminution or 
interruption occurred after the start of the coal mining operations, 
then the operator would become liable for the damage caused to the 
water supply by the coal mining operations. Thus, the Director finds 
that this subsection is consistent with 30 CFR 701.5 and is approving 
this portion of Pennsylvania's amendment.
    Section 5.2(e)(2) (52 P.S. 1406.5b(e)(2)). This section provides 
that a mine operator can be relieved of liability for affecting a 
public or private water supply when the contamination, diminution or 
interruption occurred more than three years after mining activity 
occurred. In our letter of June 23, 2000, we indicated to Pennsylvania 
that the statute of limitations proposed by this section will allow 
water supplies that otherwise will be protected under federal 
regulations to continue to be contaminated, diminished or interrupted 
because mining occurred more than three years prior to the onset of 
water supply problems. PADEP responded in their letter to OSM dated 
July 14, 2000, that the same reasoning applied to the statute of 
limitation issue of section 5.1(b) of BMSLCA was applicable for this 
section. In addition, Pennsylvania indicated that based on the 
definition of the term ``underground mining activities,'' the 
obligation to replace an affected water supply extends from the time a 
water supply is first undermined until three years after the mine has 
closed and reclamation has been completed. In essence, the period of 
liability is equivalent to the liability period under the federal 
regulations which ends at the time that jurisdiction would be 
terminated under the federal program. Pennsylvania contends this period 
should be sufficient to capture virtually all water supply impacts that 
occur as a result of the underground mining activity.
    The Director is not approving this portion of the BMSLCA for 
several reasons. First, even though there have been no cases reported 
to date where this provision has been used to deny restoration or 
replacement of affected supplies, it does not mean that it will not 
happen. If this provision were ever used to deny coverage that would 
otherwise have been provided under federal regulations, it would be 
less effective than the federal requirements. This provision virtually 
assures that at some point in time, there will be a water supply that 
would not be restored or replaced because the landowner did not

[[Page 67018]]

report the contamination, diminution or interruption within the noted 
time frame.
    Second, for the reasons discussed in our findings for section 
5.1(b) (52 P.S. 1406.5a(b)), which are incorporated herein, the 
Director believes this section to be less effective. Additionally, 
Pennsylvania's three-year limit is not a normal statute of limitations 
because it is not tied to an injury. It ignores the legislative history 
of analogous Sec. 516 of SMCRA, which acknowledges that ``[s]ubsidence 
occurs * * * on a random basis, at least up to 60 years after mining.'' 
H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977). Pennsylvania's 
argument that the net effect of 5.2(e)(2) is the same as the federal 
termination of jurisdiction rule is erroneous. According to 
Pennsylvania, it is eliminating an operator's liability three years 
after the mine has closed and reclamation is completed. However, both 
the termination of jurisdiction rule (30 CFR 700.11(d)) and the EPAct 
regulations (30 CFR Secs. 701.5 and 817.41(j)) recognize that a 
regulatory authority's jurisdiction may not end, if at all, until all 
the performance standards are met. The termination of jurisdiction 
rule, while consistent with the EPAct regulations, is not applicable 
since subsidence can occur on a random basis at any time. Thus, an 
operator's liability extends indefinitely into the future. 60 FR at 
16736. With section 5.2(e)(2) (1406.5b(e)(2)), once the three years 
have passed, there is no recourse for the landowner and no way to force 
an operator to restore or replace a water supply even though a water 
supply may be affected long after the three years.
    Section 5.2(e)(3) (52 P.S. 1406.5b(e)(3)). This section allows a 
mine operator to be relieved of liability for affecting a public or 
private water supply when the contamination, diminution or interruption 
occurred as the result of some cause other than mining. A commenter 
noted this section could be construed as allowing an operator who is a 
contributing cause of the water loss, to escape responsibility for a 
loss for which the operator shares responsibility with another party. 
Based on this comment, we asked Pennsylvania in our letter of June 21, 
1999, to provide a state Attorney General's opinion that the law 
assures that wherever the operator is partially or entirely responsible 
for the water loss, state law imposes liability.
    Pennsylvania supplied an opinion from the Bureau of Regulatory 
Counsel in its letter to us dated June 1, 2000. The opinion indicates 
that in accordance with the rules of statutory construction, the intent 
of the Pennsylvania General Assembly was to provide a remedy for water 
supplies affected by underground mining. This section is construed to 
relieve an operator of responsibility to restore or replace a water 
supply only where the contamination, diminution or interruption 
occurred solely as a result of some cause other than mining. Where 
mining is partly the cause of the contamination, diminution, or 
interruption the mine operator will not be relieved of the statutory 
obligation to restore or replace the affected water supply. The Rules 
of Practice before the Pennsylvania Environmental Hearing Board also 
support this intention.
    There is no direct federal counterpart to this provision. However, 
the federal definition of ``replacement of water supply'' at 30 CFR 
701.5, requires the replacement, etc. of protected water supplies 
whenever the supplies were affected by coal mining operations. 
Therefore, this section, as explained by the Attorney General's 
opinion, is consistent with the federal definition. The Director finds 
Pennsylvania's explanation sufficiently responds to the commenter's 
concerns, and is approving this portion of the amendment.
    Section 5.2(f) (52 P.S. 1406.5b(f)). This section requires 
operators who obtain water samples in a premining or postmining survey 
to use a certified laboratory to analyze such samples. The operator 
must submit copies of the results of such analysis to the Department 
and to the landowner within 30 days of their receipt. Nothing in this 
section will prohibit a landowner or water user from using an 
independent certified laboratory to sample and analyze the water 
supply. This provision is no less effective than 30 CFR 784.20(a)(3), 
which requires a permit applicant to pay for a premining survey of the 
quantity and quality of all protected water supplies and to provide 
copies of such to the property owner and state regulatory authority. 
The Director is approving this portion of the amendment.
    Section 5.2(g) (52 P.S. 1406.5b(g)). This section indicates that if 
an affected water supply is not restored or replaced within three years 
an operator may be relieved of responsibility for replacement or 
restoration of a water supply by (1) purchase of the property, or (2) 
making a one-time payment equal to the difference between the 
property's fair market value before the time the water supply was 
affected and the time the payment was made. In our letter to 
Pennsylvania dated June 21, 1999, we indicated that this section 
appears to be less effective than the federal regulations because EPAct 
has no provisions for relieving an operator of responsibility for water 
restoration or replacement. EPAct also does not provide for 
compensation in lieu of replacement or restoration.
    In its response of June 1, 2000, Pennsylvania wrote that it may be 
cost prohibitive to restore or replace a water supply. This section 
provides the landowner the option of agreeing to compensation to 
satisfy the mine operator's obligation to restore or replace the 
affected water supply. Pennsylvania believes that by affording 
landowners and water users monetary compensation in situations where it 
is not reasonably possible to afford them an equitable remedy, its 
program is consistent with federal law.
    The Director is not approving this portion of the BMSLCA because it 
is less stringent than section 720 of SMCRA, which requires the prompt 
replacement of a protected water supply. The preamble to the federal 
regulations at 30 CFR 817.41(j) implementing 720 of SMCRA states:

    A commenter recommended that compensation be available as an 
option for those limited circumstances where an impacted supply 
can't be restored. The commenter went on to note that Congress, in 
enacting the Energy Policy Act, clearly noted that these provisions 
were not to prohibit, or interrupt underground coal mining 
operations. Without the compensation option, the commenter asserted 
that operations would be forced to cease operating if they couldn't 
replace the water supplies. OSM does not agree. The terms of the 
Energy Policy Act unequivocally require replacement. Further, OSM 
does not anticipate that underground mining operations will be 
unable to comply with this statutory mandate. For example, if the 
permittee is unable to restore a spring or aquifer, the permittee 
should still be able to provide water from an alternative source, 
such as a public water supply, or by pipeline from another location. 
60 FR at 16733 (emphasis added).

    Clearly both SMCRA and the federal regulations require restoration, 
or replacement, and thus compensation in lieu of restoration or 
replacement is not an option.
    Section 5.2(h) (52 P.S. 1406.5b(h)). This section allows a 
landowner to submit a written request asking PADEP to review an 
operator's finding that a water supply cannot reasonably be restored or 
that a permanent alternate source cannot reasonably be provided. In 
response to the request, the Department will issue an advisory opinion 
on the validity of the claim within 60 days. In our letter to 
Pennsylvania dated June 21, 1999, we indicated that this section 
appears to be less effective than the federal regulations because it 
allows a finding

[[Page 67019]]

that a permanent alternate source cannot be provided. EPAct requires a 
source to be provided without exception.
    In its response of June 1, 2000, Pennsylvania reiterated its 
argument in response to our comments on section 5.2(g) of BMSLCA. 
Pennsylvania notes that providing an opinion for landowners on whether 
they should proceed to elect a damage remedy, has done nothing more 
than provide a means to assure that a landowner does not accept 
compensation in lieu of ``equitable-type'' replacement relief unless it 
is true that a replacement water supply cannot be reasonably provided 
by the mine operator. Pennsylvania also indicated that BMSLCA addresses 
a broader array of water supplies than the federal program. The option 
to compensate represents a reasonable policy choice that provides a 
flexible approach to the water supply replacement obligation of 
underground operators. Finally, Pennsylvania noted that Sec. 720 of 
federal SMCRA provides that the water supply replacement obligation 
shall not be construed to prohibit or interrupt underground mining. It 
is entirely possible underground mining conducted under the federal 
program may result in impacts to water supplies that cannot reasonably 
be replaced. In these situations the regulatory authority would be 
faced with accepting some alternative type of settlement that is 
reasonable and equitable to the mine operator and landowner.
    As noted in the Director's decision on section 5.2(g) (52 P.S. 
1406.5(b)(g)) of the BMSLCA, SMCRA and the federal regulations require 
the replacement or restoration of water supplies without exception. The 
Director is not approving this portion of the BMSLCA because it is 
connected with section 5.2(g) (52 P.S. 1406.5(b)(g)) that allows 
compensation in lieu of replacement or restoration. Section 5.2(h) (52 
P.S. 1406.5(b)(h)) is not self-sustaining and is unenforceable without 
section 5.2(g) (52 P.S. 1406.5(b)(g)). Therefore, it is inconsistent 
with the requirements of SMCRA and the federal regulations.
    Section 5.2(i) (52 P.S. 1406.5b(i)). This section defines the term 
``permanent alternate source'' to include any well, spring, municipal 
water supply system or other supply approved by the Department which is 
adequate in quantity, quality and of reasonable cost to serve the 
premining uses of the affected water supply. In our letter to 
Pennsylvania dated June 21, 1999, we indicated that this section 
appears to be less effective than the federal rules because it bases 
the adequacy of a permanent alternate source of water on premining uses 
of the water supply rather than the premining quality and quantity and 
that the reasonable cost provision of this section makes it appear to 
be less effective than federal regulations which require replacement 
without regard to cost.
    In its response to us of June 1, 2000, Pennsylvania noted that our 
comments were an incorrect characterization of the statutory provision. 
The requirement that a replacement water supply must be of reasonable 
cost is intended to protect landowners and water users from being 
forced to accept water supplies that are unreasonably expensive to 
operate or maintain. Replacement water supplies with high costs to 
operate or maintain would only be acceptable if the mine operator 
provided for payment of the high costs.
    The Director is not approving the portion of this provision that 
requires permanent alternate replacement sources to be of reasonable 
cost. The definition of the term ``replacement of water supply'' as 
found in the federal regulations at 30 CFR 701.5 indicates that 
replacement includes payment of operation and maintenance costs in 
excess of customary and reasonable delivery costs of premining water 
supplies. Pennsylvania's argument that the requirement that a 
replacement water supply must be of reasonable cost is intended to 
protect landowners is not tenable because the federal rules require 
operators to assume the operation and maintenance costs of the 
replacement delivery systems if they are ``beyond those that are 
customary and reasonable for the premining supply.'' 60 FR at 16726. 
Therefore, the Director is not approving the phrase ``and of reasonable 
cost'' in this section. However, the Director is approving the 
remaining portion of this section. For a more complete discussion of 
the Director's decision regarding quality and quantity standards for 
replacement or restoration of water supplies, please see the Director's 
findings for sections 5.1(a)(1) and (a)(2) (52 P.S. 1406.5a(a)(1) and 
(a)(2)), which are incorporated into this finding.
    Section 5.2(j) (52 P.S. 1406.5b(j)). This section requires an 
operator to describe how water supplies will be replaced. This section 
also provides that the Department cannot require a mine operator to 
provide a replacement water supply prior to mining as a condition of 
securing a permit to conduct underground mining. There is no direct 
federal counterpart to this section. The Director finds that this 
portion of the amendment is in accordance with that portion of 
720(a)(2) of SMCRA which states that ``[n]othing in this section shall 
be construed to prohibit or interrupt underground coal mining 
operations.'' Therefore, the Director approves this portion of the 
amendment.
    Section 5.2(k) (52 P.S. 1406.5b(k)). This section allows any 
landowner, water user, or mine operator, aggrieved by an order or 
determination of the department issued under this section, the right to 
appeal the action to the Environmental Hearing Board within 30 days of 
receipt of the order. This section allows an appeal right that is found 
within numerous other sections of Pennsylvania's approved program and 
therefore is no less effective than the federal regulations at 30 CFR 
843.16 (implementing 30 CFR 840.13). The Director approves this 
section.
    Section 5.3(a) (52 P.S. 1406.5c(a)). This section provides that the 
operator and the landowner may enter into an agreement that establishes 
the manner and means by which an affected supply will be restored or an 
alternative supply will be provided or providing compensation for the 
affected water supply. It also lists what conditions must first be met 
before the operator will be released from liability. Finally, it 
prohibits double compensation to the landowner. In our letter of June 
21, 1999, to Pennsylvania, we noted that EPAct does not allow 
compensation for contamination, loss or diminution of water supplies in 
lieu of replacement. In its response of June 1, 2000, Pennsylvania 
noted these concerns were the same that we noted in sections 5.2(g) and 
5.2(g)(1). Pennsylvania's response for this section is the same as in 
those sections. In addition, Pennsylvania noted that the decision in 
National Mining Assoc. v. U.S. Department of the Interior, 172 F.3d 906 
(D.C. Cir. 1999), recognizes the legitimacy of voluntary agreements for 
damages under the federal regulatory program.
    The Director is approving this provision to the extent that the 
agreement to replace a water supply or provide an alternative water 
supply meets the requirements established in the federal definition of 
``Replacement of Water Supply'' found at 30 CFR 701.5. The Director is 
not approving agreements that provide for replacement of an alternate 
supply of water to the extent that water supply will not meet the 
requirements of the federal definition.
    The Director is also not approving this provision to the extent 
that it allows compensation in lieu of restoration or replacement of 
affected water supplies. The federal rules do not allow operators and 
landowners to enter into voluntary

[[Page 67020]]

agreements for compensation in lieu of restoration or replacement of 
affected water supplies. As previously noted, in the Director's Finding 
for section 5.2(g), which is incorporated herein, SMCRA and the federal 
rules require restoration or replacement. The terms of EPAct 
unequivocally require replacement. 60 FR at 16733 (emphasis added). 
Therefore, this is less effective than SMCRA and the federal rules. The 
Director would note that Pennsylvania's reliance on the National Mining 
Association decision is misplaced. The voluntary agreements that are 
discussed in the court decision are compensation agreements for 
subsidence damages to any noncommercial building or occupied 
residential dwelling. The opinion does not extend or recognize 
compensation agreements for damages to water supplies.
    Section 5.3(b) (52 P.S. 1406.5c(b)). This section provides that any 
agreement made under section 5.3(a) (52 P.S. 1406.5c(a)) must be 
included in every deed for conveyance of the property covered by the 
agreement. The Director is not approving this provision to the extent 
that section 5.3(a) (52 P.S. 1406.5c(a)) has not been approved and 
hence there will be no agreements providing for compensation in lieu of 
water supply replacement or restoration. Therefore, section 5.3(b) (52 
P.S. 1406.5c(b)) is inconsistent with the requirements of SMCRA and the 
federal regulations to the extent that section 5.3(a) (52 P.S. 
1406.5c(a)) is less effective.
    Section 5.3(c) (52 P.S. 1406.5c(c)). This section allows a 
landowner or water user who claims contamination, diminution or 
interruption of a water supply to seek any other remedy that may be 
provided at law or in equity. The section further indicates that in any 
proceedings in pursuit of remedies other than provided in this Act, the 
provisions of this act shall not apply and the party or parties against 
whom liability is sought to be imposed may assert in defense any rights 
or waivers arising from provisions contained in deeds, leases or 
agreements pertaining to mining rights or coal ownership on the 
property in question.
    In our letter of June 21, 1999, we asked Pennsylvania to clarify 
the intent of this section. In particular we wanted to know what was 
meant by other remedies as used in this section, and if this section 
allows an operator to assert rights that afford lesser protection than 
is provided by EPAct.
    In its response of June 1, 2000, Pennsylvania indicated that the 
General Assembly appeared to want to preserve any remedy a landowner or 
water user had under existing law covering adverse effects to a water 
supply caused by underground mining. This section gives the landowner 
or water user the option of pursuing the remedies provided by BMSLCA 
for water loss, contamination or diminution or pursuing the remedies 
available at common law or pursuing the remedies available under 
federal law. Pennsylvania concluded by noting that a mine operator 
could only assert rights that afford lesser protection than is provided 
by EPAct if the water user elects to pursue a common law remedy and the 
mine operator possesses such rights.
    This section is inconsistent with Sec. 720(a)(2) of SMCRA and the 
federal rules to the extent that any state law negates the requirements 
of, or provides less protection than, EPAct. In a challenge to the 
federal rules (30 CFR Sec. 817.41(j), 817.121(c)(2) and 701.5), 
industry plaintiffs asserted that these regulations interfered with 
state law water rights and that the Energy Policy Act did not preempt 
state law, thereby allowing a landowner's waiver of water replacement. 
National Mining Association v. Babbitt, Civil Action No. 95-0938 
(D.D.C. May 29, 1998). The district court agreed with OSM that the 
federal rules do not interfere with state law water rights. See also, 
60 FR 16727, 16733 (March 31, 1995). The court went on to hold that the 
Energy Policy Act ``created federal substantive rights that may extend 
beyond the protections afforded by inconsistent or less protective 
state laws . . . . Congress did not include limitations in Sec. 720 and 
instead made the duty to replace or repair a water supply absolute and 
without exception.'' Id. at 12 (emphasis added). For example, any 
rights or waivers found in deeds or leases or agreements that waive or 
reduce the protections of EPAct are less stringent and not approved. 
However, any Pennsylvania law that exceeds the requirements of EPAct is 
in accordance with SMCRA. Also, matters involving property rights 
disputes are beyond the scope of SMCRA (see Sec. 507(b)(9) and 
510(b)(6)(C) of SMCRA). Accordingly, the Director is not approving this 
section to the extent any state law negates or provides less protection 
than EPAct.
    Section 5.4(a) (52 P.S. 1406.5d(a)). This section requires the 
operator to either repair or compensate owners for damage to certain 
structures caused by underground mining operations. Compensation is to 
be made to the owner of structures overlying, or in the proximity of, 
the mine for the reasonable cost of its repair or the reasonable cost 
of its replacement where the damage is irreparable. Section 720(a)(1) 
of SMCRA provides for repair of material damage, which ``shall include 
rehabilitation, restoration, or replacement of the damaged'' structure 
or dwelling or compensation in the full amount of the decrease in value 
resulting from the subsidence. Pennsylvania's statute, as implemented 
by its regulation at 25 Pa. Code 89.142a(f)(1), states that the 
operator shall fully rehabilitate, restore, replace or compensate the 
owner for material damage. The two standards for repair are 
substantively identical because they both require the operator to 
rehabilitate, restore, or replace the damaged structure. However, 
Pennsylvania's standards for compensation are different than SMCRA's 
because Pennsylvania's are based on the repair or replacement costs 
while SMCRA's are based on the decrease in value. Even though the 
standards are different, OSM believes that Pennsylvania's compensation 
standard is no less stringent than SMCRA since the standard is based on 
providing the amount of funds required to repair or fully replace the 
structure. For example, in one federal enforcement case, the 
construction estimate to repair the structure significantly exceeded 
the appraisal of the structure's diminished value. Therefore, the 
Director finds that Pennsylvania's compensation standard is no less 
effective than Sec. 720(a)(1) of SMCRA because it provides compensation 
equal to the amount needed by a property owner to repair a structure or 
to purchase, or build, another structure.
    OSM was concerned with Pennsylvania's use of the phrase ``in the 
proximity of the mine.'' SMCRA has no distance limitation. Accordingly, 
we asked PADEP in our letter of June 21, 1999, what the phrase ``in the 
proximity of the mine'' meant in regard to the protections afforded by 
this section. Pennsylvania in its response of June 1, 2000, indicated 
that while the term was not defined in statute or regulation, it 
understands the term to mean the structures defined in this section do 
not have to be directly above the mine workings in order to be covered 
by repair or compensation requirements, and that the phrase recognizes 
the fact that subsidence effects often extend outward from points where 
coal is extracted in a mine. Pennsylvania stated that the phrase is not 
interpreted to impose any specific distance limitations. We find this 
explanation does not place any limits on the location of protected 
structures and find section 5.4(a) (52 P.S. 1406.5d(a)) no less 
stringent than SMCRA.

[[Page 67021]]

    While section 5.4(a) (52 P.S. 1406.5d(a)) is no less stringent than 
SMCRA in terms of definition and coverage of types of structures, the 
Director is requiring Pennsylvania to amend section 5.4 (52 P.S. 
1406.5d) to require the prompt repair and compensation for those 
structures protected under Sec. 720(a)(1) of SMCRA and 30 CFR 
817.121(c)(2). The Director is requiring this amended protection 
because section 5.5 (52 P.S. 1406.5e) of the BMSLCA, and its 
implementing regulations under 25 Pa. Code 89.143a, proposed a number 
of subsidence damage investigation and enforcement procedures that do 
not provide for prompt repair of, or compensation for, covered 
structures in certain situations. In requiring the added language, the 
enforcement actions requiring prompt repair and compensation will, at a 
minimum, be handled in conformance with Chapter 86, Subchapter H 
(Enforcement & Inspection), which requires citation and abatement of 
violations within a reasonable time.
    Please see the Director's findings for sections 5.4(a)(1) through 
(3) (52 P.S. 1406.5d(a)(1) through (3)) for further information.
    Section 5.4(a)(1) and (a)(2) (52 P.S. 1406.5d(a)(1) and (a)(2)). 
These sections provide restoration or compensation to owners of 
buildings that are accessible to the public, including commercial, 
industrial or recreation buildings and their permanently affixed 
structures as well as any noncommercial buildings customarily used by 
the public. The federal rule at 30 CFR 817.121(c)(3) requires that non-
commercial buildings must be repaired or the owner compensated. Non-
commercial building is defined at 30 CFR 701.5 as a building that is 
used as a public building or a community or institutional building as 
that term is defined in 30 CFR 761.5. Buildings used only for 
commercial, agricultural, industrial, or retail or other commercial 
enterprises are not protected in the federal rules.
    While Pennsylvania's statute protects some buildings not protected 
by the federal rules, we were concerned that the Pennsylvania statute 
was not as inclusive of buildings protected by the federal regulations. 
In our letter to Pennsylvania of June 21, 1999, we asked for 
clarification. In its response to us dated June 1, 2000, Pennsylvania 
indicated that the regulations implementing the changes to the act 
define the term noncommercial building to include any community or 
institutional building covered by definition in section 25 Pa. Code 
86.101. The definition of community or institutional building in 
section 25 Pa. Code 86.101 includes scientific and correctional 
facilities and structures used for public services. Pennsylvania stated 
that its program therefore includes all noncommercial buildings covered 
under the federal program.
    We find that Pennsylvania's explanation is reasonable and find that 
the approved program does cover the same structures as the federal 
definition describes in the term ``community or institutional 
buildings'' and is no less effective than the federal rules. The 
Director is approving this portion of the amendment.
    Section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)). This section reads in 
part:

    Restoration or compensation for structures damaged by 
underground mining--(a) Whenever underground mining operations 
conducted under this act cause damage to any of the following 
surface buildings overlying or in the proximity of the mine:
    (3) dwellings used for human habitation and permanently affixed 
appurtenant structures or improvements in place on the effective 
date of this section or on the date of the first publication of the 
application for a Mine Activity Permit or a five-year renewal 
thereof for the operations in question and within the boundary of 
the entire mine as depicted in said application; * * * the operator 
of such coal mine shall repair such damage or compensate the owner 
of such building for the reasonable cost of its repair or the 
reasonable cost of its replacement where the damage is irreparable.

In our letter to Pennsylvania of June 21, 1999, we noted that:

    There is no federal requirement that the structure be within the 
boundary of the entire mine. Pennsylvania does not define 
``improvements.'' The Black's Law Dictionary defines improvements as 
``[a] valuable addition made to property (usually real estate) or an 
amelioration in its condition, amounting to more than mere repairs 
or replacement, costing labor or capital, and intended to enhance 
its value, beauty or utility or to adapt it for new or further 
purposes. Generally, buildings, but may also include any permanent 
structure or other development, such as a street, sidewalks, sewers, 
utilities, etc.'' Thus, the regulation may be internally 
inconsistent since it appears that ``improvements'' and 
``permanently affixed appurtenant structures,'' which is defined by 
Pennsylvania, include some of the same things.

    In its response of June 1, 2000, Pennsylvania noted that DEP 
considers improvements to include ``valuable additions'' that fall 
outside the scope of the term permanently affixed appurtenant 
structures. Pennsylvania stated that according to the rules of 
statutory construction, only improvements must be completely within the 
boundary of the mine before the operator has a duty to repair or 
compensate. Pennsylvania also declared that only improvements must be 
in place on the effective date of the proposed regulations or on the 
first publishing date of the mine permit.
    The federal rules protect structures in place at the time of mining 
that are installed on, above or below, or a combination thereof, the 
land surface if that building, structure or facility is used in 
connection with an occupied residential dwelling (see 30 CFR 
817.121(c)(2) and the definition of ``occupied residential dwelling and 
structures related thereto'' at 30 CFR 701.5).
    Pennsylvania's protection of structures is more limited than the 
federal requirements because it requires improvements to be in place at 
the time of permit application or at the time of the five-year renewal 
and within the boundary of the mine. The federal definition protects 
improvements that were in place at the time of mining as long as they 
were related to a structure. Thus, a structure could have been built 
after the permit application or five-year renewal and still be 
protected at the time of mining under the federal rules, but not under 
section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) of the BMSLCA. Additionally, 
this section of the BMSLCA requires improvements to be located within 
the boundary of the mine to be protected. The federal rules do not have 
a similar restriction.
    The Director finds that the portion of section 5.4(a)(3) (52 P.S. 
1406.5d(a)(3)) that states ``dwellings used for human habitation and 
permanently affixed appurtenant structures or improvements'' is no less 
effective than the federal regulations and is approving it. This 
portion of the amendment provides protections similar to that provided 
by the federal definition of the term ``occupied residential dwelling 
and structures related thereto'' found at 30 CFR 701.5. However, the 
Director has found the following phrase in section 5.4(a)(3) (52 P.S. 
1406.5d(a)(3)) to be less effective than the federal regulations in 
protecting some structures related to residential dwellings: `` * * * 
in place on the effective date of this section or on the date of first 
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the 
boundary of the entire mine as depicted in said application.'' The 
Director is not approving this phrase. For the Director's findings on 
the term ``permanently affixed appurtenant structures'' please see the 
discussion of that term under 25 Pa. Code 89.5.

[[Page 67022]]

    Section 5.4(a)(4) (52 P.S. 1406.5d(a)(4)). This section provides 
restoration or compensation of agricultural structures. Pursuant to 30 
CFR 817.121(c)(3), repair or compensation for material damage to 
agricultural structures is required to the extent allowed under state 
law. The Director is approving this portion of the amendment because it 
provides for protection for structures that are not protected under the 
federal regulations and is consistent with 30 CFR 817.121(c)(3).
    Section 5.4(b) (52 P.S. 1406.5d(b)). This section allows an 
operator to replace an irreparably damaged agricultural structure with 
a structure satisfying the functions and purposes served by the damaged 
structure before such damage occurred--if the structure was used for a 
purpose different from that for which it was originally constructed. 
Pursuant to 30 CFR 817.121(c)(3), repair or compensation for material 
damage to agricultural structures is required to the extent allowed 
under state law. The Director is approving this portion of the 
amendment because it provides for protection for structures that are 
not protected under the federal regulations and is consistent with 30 
CFR 817.121(c)(3).
    Section 5.4(c) (52 P.S. 1406.5d(c)). This section indicates the 
operator will not be required to repair a structure or compensate a 
structure owner for damage if the operator demonstrates the landowner 
denied access to the operator to conduct a premining survey. The 
section requires operators to serve notice on the landowner by 
certified mail or by personal service of the landowners rights 
established by sections 5.4, 5.5, and 5.6. In our letter to 
Pennsylvania dated June 21, 1999, we noted that under the federal rule 
at 30 CFR 817.121(c)(4)(iii), denial of access does not relieve the 
operator of its duty to repair or compensate landowners for subsidence 
damage. In its response to us dated June 1, 2000, Pennsylvania noted 
that:

    Act 54 imposes a statutory presumption of liability on the coal 
operator for structural damages and consistent with OSM's rationale, 
a homeowner who denies access, would preclude the regulatory agency 
and the operator from determining where the operator's liability 
should begin and where it should end.
    All Pennsylvania has done with respect to the right to assert a 
claim for compensation is to condition that right; it has not denied 
anyone their right to seek a repair or compensation remedy in the 
event their properties are damaged by mine subsidence. The 
requirement that persons who intend to invoke their rights to repair 
or compensation allow the potentially responsible mine operator an 
opportunity to inspect the property prior to mining is a reasonable 
condition and one which does not render Pennsylvania's program less 
effective.

    The Director finds that section 5.4(c) (52 P.S. 1406.5d(c)) is less 
effective than the federal regulations because the federal rules 
requiring repair or compensation for damage to non-commercial buildings 
and dwellings and related structures (30 CFR 812.121(c)(2)) do not 
provide exception for any reason when an operator's underground mining 
operation has caused subsidence damage. Pennsylvania has failed to 
account for information that the homeowner or the regulatory authority 
possesses. It is possible that the homeowner may hire someone to 
conduct a survey. In Pennsylvania's scenario, the homeowner would have 
no relief under Act 54 even though he had relevant information that 
showed causation. As a result, the Director is not approving this 
provision.
    Additionally, in the preamble to the March 31, 1995, federal rules 
on subsidence (60 FR at 16741), OSM discussed the effect of a landowner 
denying access to a property and concluded that in any enforcement 
proceeding OSM or the regulatory authority may take the effect of the 
denial into account in determining what weight, if any, to give to the 
rebuttable presumption of causation. Even though the federal rules 
concerning the presumption were suspended, this part of the preamble 
clearly indicates OSM's intent that enforcement actions would proceed 
even if landowners denied permission to operators to conduct premining 
surveys. There are no passages in the preamble or the regulations that 
relieve operators of their duty to repair or compensate landowners for 
subsidence damage to covered structures.
    Section 5.5(a) (52 P.S. 1406.5e(a)). This section requires owners 
of buildings described in section 5.4(a) (52 P.S. 1406.5d(a)), who 
believe removal of coal has caused mine subsidence damage, to notify 
the operator of the damage. In our letter to Pennsylvania dated June 
21, 1999, we noted that this section appears to be less effective than 
the federal regulations because EPAct does not require landowners to 
notify operators of damage.
    In its response of June 1, 2000, Pennsylvania noted that:

    This is the same concern presented in OSM Statutory Comment 5 
regarding [BMSLCA's] water supply replacement provisions. The 
response to that comment is also applicable here. In making this 
comment, OSM is failing to consider that in reality there has to be 
interaction between the operator and the structure owner in order to 
expedite the repair/compensation process. The sooner this 
interaction occurs, the sooner claim resolution can begin. The claim 
resolution procedures set forth in section 5.5 are intended to 
promote settlements without [PA]DEP involvement. [PA]DEP involvement 
is intended as a ``second tier'' of protection for the structure 
owner.

Similar to the issues discussed under section 5.2(a)(1) (52 P.S. 
1406.5b(a)(1)) for water loss notifications, the Director carefully 
considered Pennsylvania's proposed requirement that landowners notify 
operators with a claim of subsidence damage. The Director considered 
the proposal relative to the requirements for subsidence damage 
protection (30 CFR 817.121) and the requirements for addressing 
complaints by citizens (30 CFR part 842). As with water loss, it is 
important to note that under both the federal and the proposed 
Pennsylvania requirements, material damage resulting from underground 
mining that employs planned subsidence is not prohibited. Once damage 
occurs, the federal requirements require prompt repair or compensation, 
while Pennsylvania's proposed requirements provide for a six-month 
period where the property owner and the permittee address the damage 
without PADEP involvement. Specifically at issue under section 5.5(a) 
(52 P.S. 1406.5e(a)) is whether the requirement for landowners to 
notify operators of mine subsidence damage is in any way less effective 
than federal requirements.
    EPAct and 30 CFR 817.121(c) are silent on how the operator is 
notified of structure damage. Under 720 of SMCRA, permittees are 
responsible for prompt repair or compensation regardless of whether 
they are contacted by property owners or by the regulatory authority in 
cases where the property owners fail to do so. Under section 5.5(a) (52 
P.S. 1406.5e(a)) of the BMSLCA, Pennsylvania has elected to establish a 
subsidence damage notification procedure that requires the property 
owner to contact the operator. The proposed changes to the Pennsylvania 
program are silent on any procedures that will be followed in the event 
that landowners choose to notify the Department rather than the 
operator. However, under section 5.5(b) (52 P.S. 1406.5e(b)), 5.5(c) 
(52 P.S. 1406.5e(c)), and 25 Pa. Code 89.143(a), Pennsylvania 
established a specific procedure for

[[Page 67023]]

investigating and enforcing structure repair and compensation 
requirements for those landowners that provide notification to the 
operator.
    The Director is approving the portion of section 5.5(a) (52 P.S. 
1406.5e(a)) of the BMSLCA that deals with notification of the operator. 
Because EPAct and the federal rules do not set a federal standard 
concerning structure damage notification, the proposed Pennsylvania 
requirement that the property owner contact the operator is not 
inconsistent with SMCRA and 30 CFR 817.121(c). The Director's required 
amendment of section 5.4(a) (52 P.S. 1406.5d(a)) will insure the prompt 
repair and compensation for all structures covered by EPAct whether or 
not a landowner has contacted the operator as required by section 5.5 
(52 P.S. 1406.5e) of BMSLCA or 25 Pa. Code 89.143(a).
    However, the Director finds that use of the phrase ``removal of 
coal has caused mine subsidence'' when describing suspected causes of 
subsidence damage is not as effective as SMCRA. Section 720(a) of SMCRA 
provides that operators are responsible for repairing or compensating 
landowners for subsidence damages caused by underground coal mining 
operations. Underground coal mining operations include more activities 
than just the removal of coal. Consequently, section 5.5(a) (52 P.S. 
1406.5e(a)) acts to limit the operator's responsibility for repair or 
compensation to subsidence damage caused by coal removal. As a result, 
the Director is requiring Pennsylvania to amend section 5.5(a) (52 P.S. 
1406.5e(a)) to make it clear that operators are responsible for 
subsidence damage from underground mining operations, not just removal 
of coal. As a result of this amendment, structure owners who suspect 
subsidence damage was caused by underground coal mining operations 
would report such damage to the operator.
    Section 5.5(b) (52 P.S. 1406.5e(b)). This section provides that 
landowners may file a claim with the Department if they cannot come to 
terms with the operator within six months from the date of notice as to 
the cause of the damage. This section also requires all claims to be 
filed within two years of the date damage to the building occurred. In 
our letter to Pennsylvania dated June 21, 1999, we indicated that the 
portion of this section dealing with the six-month notification period 
does not appear to be as effective as the federal regulation because it 
does not require the prompt repair or compensation of subsidence 
damage. In our letter to Pennsylvania dated June 23, 2000, we indicated 
that the portion of the statute requiring claims to be filed within two 
years of the date damage to the building occurs ends or limits the 
Department's responsibilities if a written claim was filed more than 
two years after the date of damage to the building. The statute does 
not allow the Department to conduct required investigations or require 
operators (via notice of violation) to promptly repair or compensate 
landowners for damage to structures protected by EPAct, and may not be 
as effective as the federal regulations. While Pennsylvania does not 
have a termination of jurisdiction rule, these provisions are contrary 
to the federal rule at 30 CFR 700.11(d).
    In its letter to us dated June 1, 2000, Pennsylvania indicated that 
section 5.5(b) (52 P.S. 1406.5e(b)) does not necessarily preclude the 
prompt settlement of structure damage claims, it simply gives mine 
operators and structure owners six months to come to terms on the means 
of settlement. With regard to the provision requiring claims to be 
filed within two years of the date damage to the building occurs, 
Pennsylvania wrote in its letter to us dated July 14, 2000, that the 
limitation only pertains to PADEP's responsibility to conduct an 
investigation and does not release a mine operator from the 
responsibility to repair or compensate for structure damage. The 
statute does not prohibit PADEP from becoming involved in the 
resolution of cases that have gone beyond the two-year claim period. 
Pennsylvania further noted this section does not end PADEP's 
responsibilities. Section 5.5(c) (52 P.S. 1406.5e(c)) requires PADEP to 
issue orders directing the operator to compensate the owner or cause 
repairs to be made. Section 9 (52 P.S. 1406.9) also authorizes the 
Department to issue orders necessary to aid in enforcement of BMSLCA, 
which includes the enforcement of the operator's obligation to 
compensate the owner or to repair the subsidence. With regard to the 
comment that this provision is contrary to the federal rule at 30 CFR 
700.11(d), Pennsylvania reiterated the argument made in response to our 
comment on section 5.1(b) (52 P.S. 1406.5a(b)).
    The proposal by Pennsylvania to provide a specific claims 
investigation procedure for affected property owners was carefully 
considered by the Director relative to the existing requirements for 
addressing complaints by citizens under 30 CFR part 842 and the 
approved Pennsylvania program (see 49 FR 10253-58, March 20, 1984). As 
we stated in the preamble to the federal EPAct rules, ``existing 
citizen complaint procedures are adequate and appropriate to address 
surface owner complaints of subsidence damage.'' (60 FR at 16735). 
Currently, the approved Pennsylvania program contains a citizen 
complaint investigation and enforcement process consistent with 30 CFR 
part 842. That process does not prohibit citizen complaints or limit 
the ability of the Department to take enforcement actions based on 
whether a landowner has served notice to an operator alleging damage.
    Pennsylvania's response with respect to the six-month delay pointed 
out that ``it simply gives mine operators and structure owners six 
months to come to terms on the means of settlement.'' The EPAct and 
implementing rules provide sufficient flexibility to take into account 
site conditions, potential repair and compensation alternatives, and 
other relevant factors to judge whether a permittee has met the 
requirement to promptly repair or compensate for structure damage.
    Additionally, section 5.5(b) (52 P.S. 1406.5e(b)) ignores the 
requirement of 720(a)(1) of SMCRA, which requires the prompt repair of, 
or compensation for protected structures. It allows six months to pass 
without operator action even if the operators reach an early impasse 
with the owners. Section 5.5(b) (52 P.S. 1406.5e(b)) would prohibit 
Pennsylvania from issuing orders to require repair or compensation 
before the six months elapsed. As noted under Section 5.4(a) (52 P.S. 
1406.5d(a)), the Director is requiring Pennsylvania to amend its 
program to require prompt repair and compensation in all cases of 
EPAct-covered structure damage. To ensure that Pennsylvania possesses 
adequate authority to issue orders requiring the prompt repair and 
compensation, regardless of whether the structure owner has notified 
the Department or the permittee, the Director is not approving the 
portion of this provision that states `` * * * within six months of the 
date of the notice.''
    Additionally, the section provides that a landowner's right to a 
Department investigation will expire after two years. We disagree that 
the Ninth Circuit case cited by Pennsylvania is applicable. The 
proposition held by the court of appeals and cited by Pennsylvania 
states that when a federal statute contains no limitations provisions, 
an applicable state statute of limitations should be applied, unless 
there is an analogous federal statute of limitations, or the state law 
would frustrate or interfere with national policies. The Ninth Circuit 
case is the general rule applicable to litigation involving private 
parties. However, this general rule and its exceptions do not apply to 
government

[[Page 67024]]

actions brought to vindicate public interests. Dole v. Local 427, 
International Union of Electrical, Radio and Machine Workers, 894 F.2d 
607 (3d Cir. 1990). The general rule that applies to government actions 
is that ``no statute of limitations will be applied in civil actions 
brought by the Government, unless Congress explicitly imposes such time 
limitations.'' Dole, 894 F.2d at 610. The court of appeals in Dole, 
held that no statute of limitations applies to the government so long 
as a public purpose is served. While section 5.5(b) (52 P.S. 
1406.5e(b)) of BMSLCA may benefit a private individual, this is no 
different than the situation in Dole, where the Department of Labor 
sued to enforce individual and public rights. The fact that a public 
suit may benefit a private individual does not change the application 
of the general rule for government actions. Under the provisions of the 
BMSCLA, it will be Pennsylvania that will enforce the requirement that 
the operator restore or compensate a protected structure. The 
requirement to restore a structure or compensate its owner not only 
serves a private purpose it also serves a public purpose as well. The 
requirements not only protect private structure owners but buildings 
owned by the government or that serve as a public building or a 
community or institutional building.
    Further, a time limit on subsidence damage claims is adverse to the 
general scheme of SMCRA. For example, this section would limit 
Pennsylvania's ability to take enforcement actions and would interfere 
with the administrative methods established by 517 and 521 of SMCRA 
since it could be difficult to determine when the structure was 
initially affected. Since every state could have a different time 
period, this section is contrary to the public policy of Sec. 102(a) of 
SMCRA, which established a nationwide program and with 101(g) of SMCRA. 
It could also preclude some citizen suits because in some situations, a 
citizen might not know that Pennsylvania was not taking action until 
the two years elapsed. Additionally, if a request for an investigation 
by Pennsylvania of possible subsidence damage was not made within two 
years from the date of structure damage, Pennsylvania would not 
consider it a violation, because Pennsylvania would not investigate the 
claim. Since it would not be a cited violation, this would prevent 
Pennsylvania from holding operators responsible for subsidence damage 
to structures.
    We disagree with Pennsylvania that this time limitation is no less 
effective than the federal rules. It is contrary to 505(b) of SMCRA, 
which prohibits any state program from having state laws or regulations 
that are inconsistent with SMCRA. Failure to repair or compensate a 
structure owner is in direct contrast with the purposes of EPAct and 
the federal regulations that require without a time limit, the repair 
or compensation of protected structures. This is evidenced by language 
in the Congressional House report that specifically rejected the 
Secretary's regulations originally promulgated in 1983. The 1983 
regulations only required repair or compensation of structures to the 
extent allowed under state law. H.R. Rep. No. 474, 102d Cong., 2d Sess, 
pt. 8 at 132 (1992). This provision is also contrary to citizen 
complaint investigation standards.
    With respect to Pennsylvania's characterization that the limitation 
only pertains to PADEP's responsibility to conduct an investigation, 
and does not release a mine operator from the responsibility to repair 
or compensate for structure damage, the Director observes that the net 
effect will be the same because the only entity, PADEP, that could 
enforce the obligation is prohibited from doing so. As stated in 
section 5.6(c) (52 P.S. 1406.5f(c)), the duty to repair or compensate 
for subsidence damage is the sole and exclusive remedy for such damage. 
If the operator refuses to acknowledge responsibility for repair or the 
amount of compensation, and the structure owner did not request an 
investigation within two years, the owner has no recourse because the 
state is prohibited from conducting an investigation. We also assert 
that Pennsylvania's characterization that the statute does not prohibit 
PADEP from becoming involved in the resolution of cases that have gone 
beyond the two-year claim period is misleading. First, Pennsylvania 
fails to elaborate on how this could occur. OSM interprets the statute 
to mean that, if the owner asks for an investigation within two years 
but Pennsylvania's enforcement goes beyond two years, Pennsylvania can 
continue its enforcement. If the owner fails to ask for an 
investigation, Pennsylvania is precluded from enforcement. Finally, we 
disagree with Pennsylvania's statement that section 5.5 (52 P.S. 
1406.5e) does not end PADEP's responsibilities because of section 
5.5(c) (52 P.S. 1406.5e(c)) of the BMSLCA. Section 5.5(c) (52 P.S. 
1406.5e(c)) is completely reliant on section 5.5(b) (52 P.S. 
1406.5e(b)). Section 5.5(c) (52 P.S. 1406.5e(c)) states that ``[t]he 
department shall make an investigation of a claim within thirty days of 
receipt of the claim.'' Section 5.5(b) (52 P.S. 1406.5e(b)) states if 
the parties are unable to agree, the owner of the building may file a 
claim with the Department. Thus, the reference to claim in 5.5(c) (52 
P.S. 1406.5e(c)) refers to the claim discussed in 5.5(b) (52 P.S. 
1406.5e(b)). Section 5.5(c) (52 P.S. 1406.5e(c)) does not discuss any 
other options or alternatives. Based on the above rationale, the 
Director finds this section less effective than the federal rules and 
is not approving this section.
    Finally, since our decision is based on the above, we feel it is 
unnecessary to address Pennsylvania's interpretation of the federal 
regulations describing termination of jurisdiction.
    Section 5.5(c) (52 P.S. 1406.5e(c)). This section provides that the 
Department will make an investigation of damage claims within 30 days 
of receipt of the claim and, within 60 days following the 
investigation, make a determination in writing whether the damage was 
caused by subsidence. This section further provides that the Department 
will issue a written order directing the operator to compensate the 
structure owner or repair the damaged structure within six months or a 
longer period. In our letter to Pennsylvania dated June 21, 1999, we 
indicated that the Department's written determination made within 60 
days of the investigation appears to be less effective than the citizen 
complaint procedures of 30 CFR 842.12(d). The federal rule requires a 
response within 10 days of the inspection. We further indicated that if 
the term ``written order'' means a notice of violation, this section 
does not appear to be as effective as the federal regulations in that 
six months exceeds the total time allowed for abatement of a notice of 
violation. ``The total time for abatement under a notice of violation, 
including all extensions, shall not exceed 90 days from the date of 
issuance, except upon a showing * * * [of] one or more of the 
circumstances in paragraph (f) of this section.'' 30 CFR 843.12(c).
    In its response to us dated June 1, 2000, Pennsylvania wrote that:

    The 60-day period the department is allotted to make a 
determination cannot be compared with the 10-day period specified in 
30 CFR 842.12(d). [This section] requires PADEP to reach a final 
determination within 60 days of making an investigation, where the 
federal requirement only relates to communication with the 
complainant * * *. There is nothing within 30 CFR 842.12(d) that 
specifically requires OSM to take enforcement action within the 10-
day period. [A]lso * * * 30 CFR 842.12(d) establishes no minimum 
time period in which OSM must conduct its investigation.


[[Page 67025]]


    With regard to the term ``written order'' as used in this section, 
Pennsylvania indicated that the term does not refer to a notice of 
violation, but rather to an administrative order directing the operator 
to repair or compensate the structure owner.
    As noted in the finding for section 5.2(b)(2), the preamble to the 
federal EPAct rules states ``existing citizen complaint procedures are 
adequate and appropriate to address surface owner complaints of 
subsidence damage.'' (60 FR at 16735). The proposal by Pennsylvania to 
provide a claims investigation procedure for affected property owners 
was carefully considered by the Director relative to the existing 
requirements for addressing complaints by citizens under 30 CFR part 
842. Currently, the approved Pennsylvania program regarding citizen 
complaint investigations and enforcement provides that if an inspection 
is made, the Department will notify the citizen within 10 days of 
completion of the inspection of the results. If no inspection is made, 
the Department will notify the citizen within 15 days of receipt of the 
complaint. Pennsylvania's approved citizen complaint rules are 
consistent with 30 CFR 842.12 and allow latitude in determining what 
constitutes the point at which an inspection is complete to allow for 
the collection of necessary data (see 49 FR 10253-58). As a result, 
citizen complaint inspection duties could be completed prior to the 60 
days specified in section 5.5(c) (52 P.S. 1406.5e(c)). Under existing 
citizen complaint rules, once an inspection is completed, Pennsylvania 
has 10 days to describe its enforcement action or lack thereof. 
However, under the proposed provision, an inspection may occur in a 
short time, e.g. two days, but Pennsylvania would have longer than 10 
days to notify the citizen of its inspection results, e.g., 60 days. 
This is inconsistent with Pennsylvania's existing rules and the federal 
rules regarding time requirements for responding to citizen complaints. 
To be consistent with the federal rules, Pennsylvania, within 10 days 
of completing all the inspection duties, must notify the citizen of its 
decision. Therefore, the Director is approving this portion of section 
5.5(c) (52 P.S. 1406.5e(c)) to the extent that it is consistent with, 
or more timely than, the citizen complaint procedures and is requiring 
Pennsylvania to amend its program to the extent the time frames are 
longer than the citizen complaint procedures.
    Section 5.5(c) (52 P.S. 1406.5e(c)) also provides that if the 
Department found that mining caused damage, it shall issue an order 
directing the operator to compensate or cause repairs to be made within 
six months or longer. The Director is not approving the use of an 
administrative order that allows the operator six months or longer to 
repair damage or compensate landowners. Federal regulations at 30 CFR 
843.12(c) provide that ``The total time for abatement under a notice of 
violation, including all extensions, shall not exceed 90 days from the 
date of issuance, except upon a showing * * * [of] one or more of the 
circumstances in paragraph (f) of this section.'' Because the federal 
rules require Pennsylvania to issue a notice of violation within an 
abatement date of not more than 90 days, instead of an administrative 
order with an abatement date of six months or longer, the Director is 
not approving the following phrase from section 5.5(c) (52 P.S. 
1406.5e(c)), `` * * * within six months or a longer period if the 
department finds that the occurrence of subsidence or subsequent damage 
may occur to the same building as a result of mining.'' This phrase is 
not as effective as the federal regulations that call for orders with 
abatement dates less than 90 days except for the circumstances noted in 
section 30 CFR 843.12(c).
    Finally, the Director finds that Pennsylvania's use of the term 
``underground coal mining'' when making a damage determination is less 
stringent than section 720 of SMCRA. SMCRA requires underground coal 
mining operations to comply with requirements for damage repair or 
compensation. The term ``underground coal mining operations'' is more 
expansive than Pennsylvania's definition of underground mining, which 
is defined at 25 Pa. Code 89.5 to be the extraction of coal. Therefore, 
the Director is requiring Pennsylvania to amend this section to insure 
that any written damage determinations made by PADEP will take into 
account subsidence due to underground coal mining operations as 
required by SMCRA.
    Section 5.5(d) (52 P.S. 1406.5e(d)). This section provides that the 
operator will not be liable for repairs or compensation in an amount 
exceeding the cost of replacement of the damaged structure. The section 
also provides that the occupants of a damaged structure shall be 
entitled to additional payment for reasonable actual expenses incurred 
for temporary relocation and for other actual reasonable incidental 
costs agreed to by the parties or approved by the Department. Section 
720(a)(1) of SMCRA provides for repair of material damage, which 
``shall include rehabilitation, restoration, or replacement of the 
damaged'' structure or dwelling or compensation in the full amount of 
the decrease in value resulting from the subsidence. As previously 
stated in section 5.4(a) (52 P.S. 1406.5d(a)), the cost of replacement 
is no less stringent than section 720(a)(1) of SMCRA. There is no 
federal counterpart to provisions for relocation and incidental 
expenses provided for in this portion of the statute. However, because 
these provisions provide additional benefits not required by the 
federal regulations, the Director finds that they are not inconsistent 
with the requirements of SMCRA or the federal regulations and is 
approving this portion of the amendment.
    Section 5.5(e) (52 P.S. 1406.5e(e)). This section requires an 
operator to deposit in escrow, an amount equal to the cost of repair or 
compensation if the operator appeals an order issued by the Department. 
In our letter to Pennsylvania dated June 21, 1999, we indicated that 
this section appears to be less effective than the federal regulations 
because there is no provision, in cases where the operator has not 
appealed an order of the Department, to insure that funds are available 
for the repair or compensation for damage to structures and no 
financial guarantees for the restoration of water supplies.
    Pennsylvania responded in their letter of June 1, 2000, that 
section 6(b) (52 P.S. 1406.6(b)) of BMSLCA authorizes PADEP to require 
bonds of appropriate amounts to ensure the applicant's faithful 
performance of mining or mining operations, in accordance with the 
provisions of sections 5, 5.4, 5.5, and 5.6 (52 P.S. 1406.5, 1406.5d, 
1406.5e, and 1406.5f). These requirements are in addition to the escrow 
requirements of section 5.5(e) (52 P.S. 1406.5e(e)). These bonds must 
be posted at the time of permit application and will be in place to 
ensure the repair of any and all structure damage that occurs during 
the term of the mining permit. Finally, Pennsylvania noted that the 
requirements to post escrow under section 5.5(e) (52 P.S. 1406.5e(e)) 
functions as an additional assurance that repairs or compensation will 
be provided by mine operators.
    OSM agrees that the escrow requirements of section 5.5(e) (52 P.S. 
1406.5e(e)) are separate from the requirements of section 6(b) (52 P.S. 
1406.6(b)) of BMSLCA. Section 5.5(e) (52 P.S. 1406.5e(e)) allows an 
appeal right that is found within numerous other sections of 
Pennsylvania's approved program and is no less

[[Page 67026]]

effective than the federal regulations at 30 CFR 843.16 (implementing 
30 CFR 840.13). The federal rules do not require an operator to place 
into escrow the cost of repair or compensation before it can appeal an 
order. Since an escrow account will serve to protect affected structure 
owners, the Director finds this section consistent with the federal 
rules and therefore, approves it.
    Section 5.5(f) (52 P.S. 1406.5e(f)). This section provides for 
Pennsylvania to take enforcement action if an operator fails to repair 
or compensate for subsidence within six months or longer period as the 
Department has established or if the operator has failed to perfect an 
appeal of an order. The section further provides for payment of the 
escrow deposit if an operator fails to repair or compensate for damage 
after exhausting its right of appeal.
    The Director has found that the escrow accounts provide a level of 
protection beyond that of the federal requirements and is approving 
that portion of the amendment. However, the portion of section 5.5(f) 
(52 P.S.1406.5(e)(f)) allowing six months or longer to pass before the 
Department takes an enforcement action is less effective than the 
federal regulations at 30 CFR 843.12(c), which requires abatement of 
violations within 90 days. As stated in the finding for 5.5(c) (52 P.S. 
1406.5e(c)), an operator's failure to repair or compensate for 
subsidence damage is a violation that must be abated within 90 days. To 
ensure that Pennsylvania has the ability to enforce the necessary 
requirements of EPAct consistent with 30 CFR part 843, the Director is 
not approving the portion of section 5.5(f) (52 P.S. 1406.5e(f)) that 
states: `` * * * within six months or longer or such period as the 
department has established or fail to perfect an appeal of the 
department's order directing such repair or compensation.'' Not 
approving the portion of the phrase dealing with the six-month period 
will remove an enforcement impediment to Pennsylvania. As noted, the 
Director is also not approving language in that phrase that deals with 
perfecting an appeal of the Department's orders. This phrase prevents 
Pennsylvania from issuing a cessation order if an operator takes an 
appeal, thus acting as a stay. This provision is not as effective as 
the federal regulations at 30 CFR 843.16(b), which indicate that the 
filing of an application for review and request for a hearing cannot 
operate as a stay of any notice or order.
    Section 5.5(g) (52 P.S. 1406.5e(g)). This section provides that, 
with the exception of 5.5(f) (52 P.S. 1406.5e(f)), existence of 
unresolved claims of subsidence damage shall not be used by the 
Department as a basis for withholding permits from, or suspending 
review of, permit applications submitted by the mine operator against 
whom such claims have been made. In our letter to Pennsylvania dated 
June 21, 1999, we asked Pennsylvania to clarify what is meant by the 
phrase ``existence of unresolved claims.''
    In response, Pennsylvania indicated that the term is self-
explanatory. Structure damage claims often take some time to be 
resolved and this section simply provides that an operator is not 
deemed to be in violation of its repair or compensation obligations as 
long as it is, in good faith, attempting to make appropriate repairs or 
pay appropriate compensation, or has posted the escrow amount necessary 
to contest its liability. Finally, Pennsylvania also noted that a claim 
is only an allegation, not a violation.
    The Director is approving this section. The federal regulations at 
30 CFR 773.12 and 773.14 prohibit the issuance of a permit if the 
applicant has outstanding violations unless both the abatement period 
for the notice of violation has not yet expired and the applicant has 
certified in the permit application that the violation is being 
satisfactorily corrected. Pennsylvania's provision is consistent with 
these regulations since no violation was issued.
    Section 5.6(a) (52 P.S. 1406.5f(a)). This section deals with 
voluntary agreements for repair or compensation for damages to 
structures caused by underground mining. In our letter of June 21, 
1999, to Pennsylvania we noted that several times within this section 
Pennsylvania refers to ``releases'' that could be a part of the 
agreements. We asked Pennsylvania to clarify what is meant by the term 
``release'' as used in this section.
    In its letter to us dated June 1, 2000, Pennsylvania responded that 
BMSLCA does not define release. As the term is used in section 5.6 (52 
P.S. 1406.5f), it refers to a written discharge, acquittance or receipt 
given in exchange for consideration as part of an agreement that 
establishes the means and methods by which the mine operator will 
repair or compensate for subsidence damage. Pennsylvania noted that 
section 5.6(a) (52 P.S. 1406.5f(a)) recognizes that mine operators who 
have fully met their statutory obligations are entitled to obtain a 
release that precludes the landowner from seeking multiple recoveries 
on the same claim.
    The Director is approving this portion of the amendment. While 
there is no direct federal counterpart to this section, agreements were 
recognized in the preamble to the federal rule, so long as the 
agreements did not ``negate the requirements of the Energy Policy 
Act.'' 60 FR at 16735. Since this section provides that ``remedies 
shall be no less than those necessary to compensate the owner of a 
building for the reasonable cost of its repair,'' the Director finds 
this section not inconsistent with the requirements of SMCRA and the 
federal regulations.
    Section 5.6(b) (52 P.S. 1406.5f(b)). This section provides that 
when a voluntary agreement for repair or compensation is executed 
between landowners and operators, every deed for conveyance of property 
covered by the agreement must contain a recital of the agreement and 
any release contained within the agreement. There is no federal 
counterpart to this portion of the amendment. Since this section 
provides notice of the agreement and any release, the Director finds it 
not inconsistent with the requirements of SMCRA and the federal 
regulations and is approving it.
    Section 5.6(c) (52 P.S. 1406.5f(c)). This section provides:

    The duty created by section 5.5 to repair or compensate for 
subsidence damage to the buildings enumerated in section 5.4(a) 
shall be the sole and exclusive remedy for such damage and shall not 
be diminished by the existence of contrary provisions in deeds, 
leases or agreements which relieved mine operators from such duty. 
Nothing herein shall impair agreements entered into after April 27, 
1966, and prior to the effective date of this section, which, for 
valid consideration, provide for a waiver or release of any duty to 
repair or compensate for subsidence damage. Any such waiver or 
release shall only be valid with respect to damage resulting from 
the mining activity contemplated by such agreement.

In our letter of June 21, 1999, to Pennsylvania we noted that this 
section appears to be less effective than the federal regulations 
because the post-1966 structures may have entered into an agreement 
that would have provided requirements that are less effective than 30 
CFR 817.121(c). OSM has determined that ``[a]n underground mining 
operation has a statutory obligation to repair, which may not be 
negated by a prior agreement.'' 60 FR at 16736.
    In its response to us dated June 1, 2000, Pennsylvania noted that:

    ``Post 1966 structures'' or structures built after 4/27/66 had 
no protection from subsidence damage under BMSLCA until 8/21/94, the 
effective date of section 5.6. Because BMSLCA did not provide 
protection to these structures, it is highly unlikely there are any 
agreements providing for repair or compensation for ``post 1966 
structures.'' Pre 1966 dwellings were completely protected;

[[Page 67027]]

they could not be damaged by subsidence. Post 1966 agreements for 
pre 1966 dwellings would have to have provided the homeowners more 
than full compensation or repairs otherwise the owner would not have 
had any reason to enter into an agreement with a mine operator. 
Accordingly, this provision is at least as effective as 30 CFR 
817.121(c).

    The Director approves the following language:

    The duty created by section 5.5 to repair or compensate for 
subsidence damage to the buildings enumerated in section 5.4(a) 
shall be the sole and exclusive remedy for such damage and shall not 
be diminished by the existence of contrary provisions in deeds, 
leases or agreements which relieved mine operators from such duty.

    There is no requirement in the federal rules that Pennsylvania have 
a requirement in addition to the duties enumerated in sections 5.4 and 
5.5 (52 P.S. 1406.5d and 1406.5e) of the BMSLCA. If Pennsylvania wishes 
to eliminate any common law duties, that is within its discretion. 
Accordingly, this language is not inconsistent with the requirements of 
SMCRA and the federal regulations. However, the Director does not find 
Pennsylvania's explanation with regard to the last two sentences of 
section 5.6(c) (52 P.S. 1406.5f(c)) to be persuasive, because to do so 
would render that portion of section 5.6(c) (52 P.S. 1406.5f(c)) 
meaningless. The Director finds that the last two sentences: ``Nothing 
herein shall impair agreements entered into after April 27, 1966, and 
prior to the effective date of this section, which, for valid 
consideration, provide for a waiver or release of any duty to repair or 
compensate for subsidence damage. Any such waiver or release shall only 
be valid with respect to damage resulting from the mining activity 
contemplated by such agreement'' are inconsistent with the federal 
regulations at 30 CFR 817.121(c) and the Director is not approving this 
portion of section 5.6(c) (52 P.S. 1406.5f(c)). While OSM recognizes 
that EPAct and Act 54 are not retroactive, this language seems to 
provide that private agreements entered into between April 27, 1966 and 
August 21, 1994, waiving or releasing any duty to repair or compensate 
for subsidence damage remain effective, including for mining activities 
beyond the effective date of the protections of EPAct and Act 54, if 
contemplated by the agreement. Thus, these sentences provide that 
agreements made after April 1966 and before August 21, 1994, do not 
have to comply with the provisions of the BMSLCA if they are written 
contrary to the requirements of section 5.5 (52 P.S. 1406.5e) of 
BMSLCA. Section 720(a)(1) and 30 CFR 817.121(c)(2) require repair or 
compensation for affected structures. Agreements are acceptable if the 
terms of the agreement meet ``the requirements under paragraph 
817.121(c)(2).'' 60 FR at 16735. ``Any permittee/owner agreements 
cannot negate the requirements of the EPAct to repair or compensate for 
subsidence related material damage to occupied residential dwellings 
and related structures as well as non-commercial buildings.'' Id. Since 
this provision negates the requirements of section 5.5 (52 P.S. 
1406.5e) of BMSLCA, it is inconsistent with the federal regulations.
    Section 5.6(d) (52 P.S. 1406.5f(d)). This section provides that any 
agreement made under section 5.6(c) (52 P.S. 1406.5f(c)) must be 
included in every deed for conveyance of the property covered by the 
agreement. The Director is not approving this provision to the extent 
that section 5.6(c) has not been approved. Therefore, section 5.6(d) 
(52 P.S. 1406.5f(d)) is inconsistent with the requirements of SMCRA and 
the federal regulations to the extent that section 5.6(c) (52 P.S. 
1406.5f(c)) is inconsistent.
    Section 6 (52 P.S. 1406.6). This section was modified by both 
removing former subsection (a) and replacing references in subsection 
(b) to sections 4 and 5 with references to sections 5, 5.4, 5.5 and 
5.6. The section now requires applicants to file bonds conditioned upon 
the applicant's faithful performance of mining or mining operations in 
accordance with sections 5, 5.4, 5.5 and 5.6. While this section 
requires submission of bonds at the time of application, there is no 
requirement similar to that found in 30 CFR 817.121(c)(5), which 
requires an adjustment of bond amount for subsidence damage to 
structures or water supplies if repair or replacement is not completed 
within 90 days of occurrence of damage.
    In our letter of June 21, 1999, we indicated that section 5.5(e) 
(52 P.S. 1406.5e(e)), regarding establishment of escrow accounts 
appears to be less effective than the federal regulations because there 
is no provision in cases where the operator has not appealed an order 
of the Department to insure that funds are available for the repair or 
compensation for damage to structures and no financial guarantees for 
the restoration of water supplies. After reviewing Pennsylvania's 
response to that comment, we found that the escrow provisions of 
section 5.5(e) (52 P.S. 1406.5e(e)) were separate from the requirements 
of 30 CFR 817.121(c)(5) to increase the bond in response to subsidence 
damage. However, by reviewing Pennsylvania's response to our comment in 
section 5.5(e) (52 P.S. 1406.5e(e)), we found that section 6 was 
required to be amended to include this provision.
    Pennsylvania responded in their letter of June 1, 2000, that:

    Section 6(b) of BMSLCA authorizes PADEP to require bonds of 
appropriate amounts to ensure the applicant's faithful performance 
of mining or mining operations, in accordance with the provisions of 
sections 5, 5.4, 5.5, and 5.6.
    These requirements are in addition to the escrow requirements of 
section 5.5(e). These bonds must be posted at the time of permit 
application and will be in place to ensure the repair of any and all 
structure damage that occurs during the term of the mining permit.

As Pennsylvania noted, these bonds will be posted at the time of permit 
application. However, it is very difficult to predict the amount of 
subsidence damage that will occur to structures, therefore, it may be 
necessary to raise the bond amounts after damage has occurred. There is 
no provision in the Pennsylvania program that requires the state 
regulatory authority to increase bonds in response to subsidence 
damages that are not repaired or replaced within 90 days. 
Pennsylvania's only mechanism for increasing the bond amount is if a 
party in interest requests such an increase. The federal rules at 30 
CFR 817.121(c)(5) require the regulatory authority to increase the 
bonding amounts for the permittee. Pennsylvania's requirement places 
the burden on someone other than the state to monitor the bonding 
amounts. The state regulatory authority is the only appropriate entity 
to determine when the bonds must be adjusted. In addition, 
Pennsylvania's program fails to require a bond or a bond increase if 
damage occurs to the land or water resources. The federal rule at 30 
CFR 817.121(c)(5) requires an increase in the performance bond when 
subsidence related material damage to land occurs, or when a protected 
water supply is contaminated, diminished or interrupted. Therefore, the 
Director is requiring Pennsylvania to amend its program to comply with 
the provisions of 30 CFR 817.121(c)(5).
    Section 9.1(a) (52 P.S. 1406.9a(a)). This section requires that if 
the department determines, and notifies a mine operator, that a 
proposed mining technique or extraction ratio will result in subsidence 
that causes an imminent hazard to human safety, the technique or 
extraction ratio will not be permitted unless the mine operator, prior 
to mining, takes measures approved by the Department to eliminate the 
imminent hazard.

[[Page 67028]]

    Even though there is no corresponding federal regulation, the 
Director is approving this section because it is consistent with 30 CFR 
817.121(f), which requires the suspension of underground mining if 
imminent danger to inhabitants of urbanized areas, cities, towns or 
communities is found.
    Section 9.1(b) (52 P.S. 1406.9a(b)). This section provides that a 
mining technique or extraction ratio that the Department determines 
will cause irreparable damage to buildings in section 5.4(a)(3) or (4) 
(52 P.S. 1406.5d(a)(3) or (4)) will not be permitted unless the 
building owner, prior to mining, consents to such mining or the mine 
operator, prior to mining, agrees to take measures approved by the 
Department to minimize or reduce impacts resulting from subsidence to 
such buildings.
    The Director finds that there is no comparable provision in the 
federal regulations because the federal regulations do not discuss 
irreparable damage. The irreparable damage standard for this portion of 
the amendment provides a level of protection to structures threatened 
with irreparable damage that is not provided for in federal 
regulations. The Director is approving this portion of the amendment.
    Section 9.1(c) (52 P.S. 1406.9a(c)). This section provides that 
underground mining activities shall not be conducted beneath or 
adjacent to public buildings and facilities, churches, schools and 
hospitals, impoundments, or bodies of water with volume of 20 acre-feet 
or more unless the subsidence control plan demonstrates that subsidence 
will not cause material damage to, or reduce the reasonably foreseeable 
use of, such facilities. The Department may limit the percentage of 
coal extracted under or adjacent to these features or facilities or to 
any aquifer or body of water that serves as a significant water source 
for any public water supply system if it finds that it is necessary in 
order to minimize the potential for material damage. The Director finds 
that this portion of the amendment is no less effective than the 
federal regulations at 30 CFR 817.121(d), which have substantially the 
same requirements.
    Section 9.1(d) (52 P.S. 1406.9a(d)). This section provides that 
nothing in the act shall supersede standards related to the prevailing 
hydrologic balance contained in federal SMCRA and regulations 
promulgated by Pennsylvania to obtain or maintain jurisdiction over the 
enforcement and administration of SMCRA or any standard contained in 
Pennsylvania's Clean Streams Law. Even though there is no direct 
federal counterpart, the Director is approving this section because it 
does not limit or change the rights of landowners or the 
responsibilities of operators as provided for in federal regulations, 
nor is it inconsistent with the requirements of SMCRA and the federal 
regulations.
    Section 15 (52 P.S. 1406.15). This section was repealed by Act 54. 
The section allowed landowners to purchase enough support coal beneath 
a structure to provide protection from subsidence. There are no similar 
provisions in the federal regulations. The Director is approving repeal 
of this section because repealing it does not make Pennsylvania's 
program less effective than the federal regulations regarding 
protection of structures.
    Section 17.1 (52 P.S. 1406.17a). This section lists various 
conducts that are unlawful under the BMSLCA. Act 54 changed the section 
by removing the phrase ``to cause land subsidence or injury'' as one of 
the examples of unlawful conduct.
    The Director is approving this change to the BMSLCA. The federal 
rules anticipate that subsidence will occur and provide compensation 
for, or repair of, damages to homes and other structures as well as 
replacement of adversely affected water supplies. Subsidence in itself 
is not unlawful conduct under the federal regulations.
    The portion of the amendment that removes injury as unlawful 
conduct is also approved. The Director finds that the portions of the 
BMSLCA that require prevention of hazards to human safety and material 
damage to certain buildings (section 9.1) provide a similar level of 
protection from injury that the federal regulations provide. The 
Director is approving the changes to section 17.1 because they are not 
inconsistent with SMCRA and the federal regulations.
    Section 18.1 (52 P.S. 1406.18a). This section requires the 
Department to compile data in deep mine permit applications, monitoring 
reports, and other data submitted by operators, and from enforcement 
actions. The data are to be used to determine the effects of deep 
mining on subsidence of surface structures and on water resources. A 
report on the analysis of the data is to be presented to the Governor, 
the General Assembly, and the Citizen's Advisory Council every five 
years.
    There is no direct federal counterpart to this regulation but the 
Director is approving this section because it does not limit or change 
the rights of landowners or the responsibilities of operators as 
provided for in federal regulations nor is it inconsistent with the 
requirements of SMCRA and the federal regulations.

Summary Table

    The table below summarizes the Director's findings with regard to 
each section of the BMSLCA.

------------------------------------------------------------------------
                               Sections of Act 54
                                    that are         Sections of Act 54
 Sections of the BMSLCA that      conditionally         that are not
        are approved          approved or that are  approved in whole or
                                 required to be            in part
                                     amended
------------------------------------------------------------------------
Repeal of Section 4 (52 P.S.  5(b) (52 P.S.         5.1(b) (52 P.S.
 1406.4)).                     1406.5(b)).           1406.5a(b)).
5.1(a)(2) and (3) (52 P.S.    5.1(a)(1) (52 P.S.    5.2(b)(2) (52 P.S.
 1406.5a(a)(2) and (3)).       1406.5a(a)(1)).       1406.5b(b)(2)).
5.2(a)(1), (2), and (3) (52   5.4(a) (52 P.S.       5.2(d) (52 P.S.
 P.S. 1406.5b(a)(1), (2),      1406.5d(a)).          1406.5b(d)).
 and (3)).
5.2(b)(1) (52 P.S.            5.5(a) (52 P.S.       5.2(e)(2) (52 P.S.
 1406.5b(b)(1)).               1406.5e(a)).          1406.5b(e)(2)).
5.2(c) (52 P.S. 1406.5b(c)).  6 (52 P.S. 1406.6)).  5.2(g), (h), and (i)
                                                     (52 P.S.
                                                     1406.5b(g), (h),
                                                     and (i)).
5.2(e)(1) and (3) (52 P.S.    ....................  5.3(a), (b), and (c)
 1406.5b(e)(1) and (3)).                             (52 P.S.
                                                     1406.5c(a), (b),
                                                     and (c)).
5.2(f) (52 P.S. 1406.5b(f)).  ....................  5.4(a)(3) (52 P.S.
                                                     1406.5d(a)(3)).
5.2(j) (52 P.S. 1406.5b(j)).  ....................  5.4(c) (52 P.S.
                                                     1406.5d(c)).
5.2(k) (52 P.S. 1406.5b(k)).  ....................  5.5 (b) and (c) (52
                                                     P.S. 1406.5e(b) and
                                                     (c)).
5.4(a)(1), (2) and (4) (52    ....................  5.5(f) (52 P.S.
 P.S. 1406.5d(a)(1), (2),                            1406.5e(f)).
 and (4)).
5.4(b) (52 P.S. 1406.5d(b)).  ....................  5.6(c) and (d) (52
                                                     P.S. 1406.5f(c) and
                                                     (d)).

[[Page 67029]]

 
5.5 (d), (e) and (g) (52
 P.S. 1406.5e(d), (e) and
 (g)).
5.6(a) and (b) (52 P.S.
 1406.5f(a) and (b)).
9.1(a), (b), (c), and (d)
 (52 P.S. 1406.9a (a), (b),
 (c), and (d)).
Repeal of Section 15 (52
 P.S. 1406.15).
17.1 (52 P.S. 1406.17a).                            ....................
18.1 (52 P.S. 1406.18a).                            ....................
------------------------------------------------------------------------

B. Changes to the Regulations at 25 Pa Code Chapter 89

    Set forth in the explanation below and the table that follows, 
pursuant to SMCRA and the federal regulations at 30 CFR 732.15 and 
732.17, are the Director's findings concerning the amendments to the 
regulations at 25 Pa. Code Chapter 89. The Director's reasons for 
approving, conditionally approving, requiring amendments to, or not 
approving regulations in 25 Pa. Code Chapter 89 are noted. The sections 
are listed in the order they appear in Chapter 89 for easy reference.
    Section 89.5, definition of the term ``de minimis cost increase.'' 
This definition is used in section 89.145a relating to water supply 
replacement performance standards. It states an increase in the cost of 
providing a restored or replaced water supply is acceptable if the 
increased cost of operating the replaced or restored water supply is de 
minimis. This section defines de minimis as either less than 15% of the 
annual operating and maintenance costs of the previous water supply 
that is restored or replaced, or is less than $60 per year. In our 
letter to Pennsylvania dated June 21, 1999, we indicated that there was 
no counterpart in federal regulations to this definition. However, the 
preamble to the federal regulations at 60 FR 16726 provides that the 
payment of replacement water supply operation and maintenance costs in 
excess of premining costs is a logical aspect of the requirement to 
replace a water supply. The goal of the provision is to insure that the 
owner or user of the water supply is made whole, and that no additional 
costs are passed on to the water supply user after the replacement 
supply is installed, beyond those that are customary and reasonable for 
the premining supply. We concluded that the definition appears to be 
less effective than the federal regulation because it passes costs in 
excess of premining costs to the landowner or water supply user.
    In their June 1, 2000, response to our letter, Pennsylvania 
indicated that:

    The court decisions in Carlson Mining Co v. DER, EHB 91-547-E, 
Gioia Coal v. DER, 1986 EHB 82, and Buffy and Landis v. DER, 1990 
EHB 1665 defined what constituted an adequate replacement water 
supply. These Court decisions addressed increased operation and 
maintenance costs, increased maintenance, control, accessibility, 
reliability and performance of the replacement water supply. The 
Court found that a property owner has been made whole if the 
increase in operating and maintenance costs is de minimis. The 
Pennsylvania case law is codified in these regulations to facilitate 
understanding of the law by water supply users and the regulated 
community.
    The Pennsylvania regulations, which incorporated court 
determinations of what cost increases were more than de minimis and 
were required to be paid by the operator are as effective as OSM's 
provision requiring a permittee to ``replace any drinking, domestic 
or residential water supply that is contaminated, diminished or 
interrupted by underground mining activities.'' The federal 
regulations do not establish any specific requirements for operating 
and maintenance costs * * *

The Director is not approving the definition of de minimis cost 
increase from 25 Pa. Code 89.5 because it allows some increased costs 
of operating and maintaining a restored or replaced water supply system 
to be passed on to the landowner or water user. Depending on the 
original costs, both a 15% increase as well as a $60 increase could be 
excessive. The increased costs are still beyond the intent of the 
federal regulations, that ``[t]he owner or user of the water supply is 
made whole, and that no additional costs are passed on to the water 
supply user.'' (60 FR 16726). Only by fully subsidizing all costs 
associated with the replacement or restored water supply will that 
intent be realized.
    Finally, OSM notes that the cases cited by PADEP were all issued 
before Act 54 and EPACT was enacted (except Carlson, which was issued 5 
days after EPAct's date). Accordingly, these cases could not 
contemplate EPAct's requirements.
    Section 89.5, definition of the term, ``dwelling.'' Pennsylvania is 
proposing the definition of the term dwelling to be ``a building or 
other structure that, at the time subsidence occurs, is used either 
temporarily, occasionally, seasonally or permanently for human 
habitation.''
    This definition is the same as OSM's definition of the phrase 
``occupied dwelling and structures related thereto'' found in 30 CFR 
701.5, except it does not include related structures. The related 
structure information is found in Pennsylvania's regulations at 25 Pa. 
Code 89.5 in the definition of ``permanently affixed appurtenant 
structures.'' The Director finds that Pennsylvania's definition of the 
term ``dwelling'' when used in conjunction with the phrase 
``permanently affixed appurtenant structure'' is no less effective than 
the federal definition of ``occupied dwelling and structures related 
thereto,'' so long as the limitations on the definition of 
``permanently affixed appurtenant structure'' discussed later in this 
rulemaking are implemented.
    Section 89.5, definition of the term, ``fair market value.'' 
Pennsylvania's definition of fair market value is the amount at which 
property would exchange hands between a willing buyer and a willing 
seller, neither being under any compulsion to buy or sell and both 
having reasonable knowledge of the relevant facts. The only place this 
term is used in Chapter 89 is at 25 Pa. Code 89.152(a)(5)(i) with 
regard to an operator's purchase of a property to gain relief from the 
responsibility of water supply replacement. Because that section of the 
regulations has not been approved and is not self-sustaining, there is 
no need for the Pennsylvania program to contain the definition of 
``fair market value.'' As a result, the Director is not approving the 
definition of the term ``fair market value'' found in 25 Pa. Code 89.5.
    Section 89.5, definition of the term, ``irreparable damage.'' 
Through its definition of ``irreparable damage,'' Pennsylvania has 
created four ways in which a structure can be classified as irreparably 
damaged. They include: (1) Where the cost of repair would exceed the 
cost of replacement; (2) the damage is so great that its repair is 
prohibited by law; (3) it is impossible or impractical to restore the 
structure to its previous strength; or (4) for structures recognized as 
historical or architecturally

[[Page 67030]]

significant, one of the following: the damage would adversely affect 
the structures historical or architectural value, or the cost of repair 
with the same craftsmanship and historically and architecturally 
equivalent components exceeds the cost of replacement, or it is 
impossible to repair or restore the historical and architectural value 
of the structure with the same craftsmanship and historically and 
architecturally-equivalent components.
    There is no federal counterpart to this definition. The federal 
rules define ``material damage'' at 30 CFR 701.5 as (1) Any functional 
impairment; (2) any physical change that has a significant adverse 
impact on the land; or (3) any significant change in the condition, 
appearance or utility. Any material damage must be corrected (for 
structures, the other option is compensation). Pennsylvania's 
irreparable damage standard, does not contemplate correction. Thus, by 
creating an irreparable damage standard, Pennsylvania has defined a 
class of damage that may be more severe than the material damage 
standard found in federal regulations. As discussed later, there are 
certain situations, where Pennsylvania does not require protection from 
material damage. However, the Director is approving the definition of 
the phrase ``irreparable damage'' since it is not inconsistent with the 
federal rules. The Director notes that this approval does not affect 
the requirements afforded by the material damage standard found in 
federal regulations.
    Section 89.5, definition of the term, ``material damage.'' 
Pennsylvania's definition is substantially the same as and therefore no 
less effective than the federal definition of material damage at 30 CFR 
701.5. The Director is approving Pennsylvania's definition of the term 
``material damage.''
    Section 89.5, definition of the term, ``noncommercial building.'' 
Pennsylvania's definition is substantially the same as, and therefore 
no less effective than, the federal definition of noncommercial 
building at 30 CFR 701.5. The Director is approving Pennsylvania's 
definition of the term ``noncommercial building.''
    Section 89.5, definition of the term, ``permanently affixed 
appurtenant structures.'' This term is used in conjunction with 
structures listed in 25 Pa. Code 89.142a(f)(1)(i) and (iii) relating to 
subsidence control performance standards. The term is defined as a 
structure or facility securely attached to the land surface if that 
structure or facility is adjunct to, and used in connection with, 
structures listed in 25 Pa. Code 89.142a(f)(1)(i) and (iii).
    In our letter to Pennsylvania dated June 21, 1999, we indicated 
that the federal definition of the term ``occupied residential dwelling 
and structures related thereto'' does not require that the appurtenant 
structure be ``securely attached to the land.'' This is a meaningful 
difference in coverage for some structures that would be set on the 
surface but not readily removable, i.e., storage sheds that are not 
built on a foundation but are set in place on the surface of the 
ground. We asked Pennsylvania to clarify how the proposed definition 
will account for damage to appurtenant structures not attached to the 
land.
    In their letter to us of June 1, 2000, Pennsylvania indicated that 
under Pennsylvania law, those structures which are not permanently 
affixed appurtenant structures would be generally classified as 
improvements. Accordingly, these structures would be protected under 25 
Pa. Code 89.142a(f) to the extent that they were in place on August 21, 
1994, or on the date of first publication of the permit application or 
permit renewal application and within the boundary of the entire mine 
as depicted in the permit application. In addition, Pennsylvania noted 
that structures that are not attached to the ground are less prone to 
experience subsidence damage. Since these structures do not have 
foundations, they are not subject to the stresses that result from 
ground movement.
    The Director has found that Pennsylvania's definition of 
``permanently affixed appurtenant structures'' is less effective than 
the federal regulations. The federal definition of the term ``occupied 
residential dwelling and structures related thereto'' at 30 CFR 701.5, 
lists examples of protected facilities. Pennsylvania has adopted a 
similar listing of protected facilities in its definition of 
``permanently affixed appurtenant structures.'' However, in that 
definition, Pennsylvania requires that these facilities be ``securely 
attached to the land surface.'' Pennsylvania's protection of structures 
is less inclusive than the federal regulations because the federal 
requirements do not require structures to be attached to the land 
surface to be protected. This finding is acknowledged by Pennsylvania 
in its preamble when discussing the definition of ``permanently affixed 
appurtenant structures'' by stating that the definition does ``not 
include all structures encompassed by the Federal definition'' and it 
only includes those structures permanently affixed to the ground. 28 
Pa.B. 2766.
    The Director is not approving the portion of the definition that 
requires structures to be ``securely attached to the land surface.'' 
The federal regulations (definition of the term ``occupied residential 
dwelling and structures related thereto'' at 30 CFR 701.5) require 
protection for structures or facilities installed on, above or below, 
or a combination thereof, the land surface, if that building structure 
or facility is adjunct to or used in connection with an occupied 
residential dwelling. There is no requirement that such structures or 
facilities be securely attached to the land surface. By protecting only 
structures that are securely attached to the land surface, Pennsylvania 
is creating a class of facility or structure that will not be afforded 
the protections of the federal regulations.
    Section 89.5, definition of the term, ``public buildings and 
facilities.'' Pennsylvania defines ``public buildings and facilities' 
as structures that are owned or leased and principally used by a 
government agency for public business or meetings and anything built, 
installed, assembled or used by a government agency to provide a public 
service. Pennsylvania then listed examples of ``public buildings and 
facilities.'' In the federal program ``public building'' is defined at 
30 CFR 761.5 to mean any structure that is owned or leased, and 
principally used by a governmental agency for public business or 
meetings. Pennsylvania's definition of ``public buildings and 
facilities'' includes everything in the federal definition. The 
Director finds that Pennsylvania's definition of ``public buildings and 
facilities'' is no less effective than the federal definition of 
``public building'' and is approving the definition.
    Section 89.5, definition of the term, ``public water supply 
system.'' There is no corresponding federal definition to this term. 
Pennsylvania defines ``public water supply system'' as a water delivery 
system which does one of the following; serves at least 15 service 
connections used by year-round residents or regularly serves at least 
25 year-round residents, or provides water to a public building, 
church, school, hospital or nursing home. Pennsylvania uses this term 
several times throughout Chapter 89 of its regulations to describe 
protections to public water supplies. The Director is approving this 
definition because it is used to protect water supplies that are 
protected by the federal regulations and it also could be used to 
protect water supplies that may

[[Page 67031]]

not be protected under the federal program. Therefore the definition is 
not inconsistent with the requirements of SMCRA and the federal 
regulations.
    Section 89.5, definition of term, ``rebuttable presumption area.'' 
Pennsylvania defines ``rebuttable presumption area'' in the context of 
water supply replacement, to mean the area in which an operator is 
presumed responsible for diminishing, contaminating or interrupting a 
water supply. The area is defined by projecting a 35-degree angle from 
the vertical from the outside of any area where the operator has 
extracted coal from an underground mine. There is no federal 
counterpart to this definition. The Director is approving the 
definition because landowners and water users will benefit from the 
presumption through a more rapid response by operators to their 
complaints. The Director finds that this definition is not inconsistent 
with the requirements of SMCRA at section 720(a)(2) and the federal 
regulations at 30 CFR 817.41(j) to provide prompt replacement of 
protected water supplies.
    Section 89.5, definition of the terms, ``underground mining,'' and 
``underground mining operations.'' Pennsylvania's definition of 
``underground mining'' is the extraction of coal in an underground 
mine. The federal definition of the term ``underground mining 
activities'' is found at 30 CFR 701.5 and is a combination of two 
parts: (a) Surface operations incident to underground extraction of 
coal or in situ processing, such as construction, use, maintenance, and 
reclamation of roads, above-ground repair areas, storage areas, 
processing areas, shipping areas, areas upon which are sited support 
facilities including hoist and ventilating ducts, areas utilized for 
the disposal and storage of waste, and areas on which materials 
incident to underground mining operations are placed; and (b) 
Underground operations such as underground construction, operation, and 
reclamation of shafts, adits, underground support facilities, in situ 
processing, and underground mining, hauling, storage, and blasting. 
Pennsylvania's proposed definition of ``underground mining operations'' 
is substantially the same as (b) of the federal definition of 
``underground mining activities.'' Pennsylvania's definition of 
``underground mining'' is consistent with how the term underground 
mining is used in paragraph (b) of the federal definition of 
``underground mining activities'' since it is an underground operation. 
The Director finds that the definitions of the terms ``underground 
mining'' and ``underground mining operations'' is consistent with the 
federal definition of ``underground mining activities'' and is 
approving both definitions.
    Section 89.5, definition of the term, ``water supply.'' 
Pennsylvania's definition of ``water supply'' includes existing sources 
of water used for domestic, commercial, industrial or recreational 
purposes or for agricultural uses. It also includes supplies that serve 
a public building or a noncommercial structure customarily used by the 
public, including churches, schools and hospitals. This definition 
differs from the federal definition of the term ``drinking, domestic or 
residential water supply'' found at 30 CFR 701.5. Pennsylvania has 
stated in the preamble to its regulations that ``[t]he definition of 
``water supply'' includes all water supplies covered under the federal 
program, including those which are used for irrigating noncommercial 
gardens and noncommercial agricultural operations.'' 28 Pa.B. 2767.
    The Pennsylvania term is more inclusive in that it protects 
agricultural supplies, which the federal regulations do not protect 
unless they are used for direct human consumption or human sanitation, 
or domestic use. However, it does not appear to include the appurtenant 
delivery systems of the federal definition. As stated in our finding to 
section 5.1(a)(3) (52 P.S. 1406.5a(a)(3)), we expressed this concern to 
Pennsylvania in our letter of June 21, 1999. Pennsylvania responded by 
stating ``connections from a well or spring are permanent affixed 
appurtenant structures that must be repaired by the mine operator.'' 
Pennsylvania went on to state that damage to a water main and its 
connecting piping would be regulated under 25 Pa. Code 89.142a(g) if it 
was owned by the water company. If the connecting piping was owned by 
the property owner, the mine operator would be required to repair. 
Additionally, Pennsylvania's proposed performance standards at 25 Pa. 
Code 89.145a(f)(4) indicate that replacement of a water supply shall 
include the installation of any piping, pumping equipment and treatment 
equipment necessary to put the replaced water source into service. This 
performance standard includes the items contemplated by the appurtenant 
delivery system requirements of the federal regulations.
    Therefore, based on the Pennsylvania Bulletin language, 
Pennsylvania's explanation, and when used with the performance 
standards of 25 Pa. Code 89.145a(f)(4), the Director finds that the 
definition of ``water supply'' is no less effective than the federal 
definition of ``drinking, domestic, or residential water supply'' and 
is approving this portion of the amendment.
    Section 89.33. This section deals with the geologic data 
requirements of the permit. Pennsylvania made only two minor revisions 
to this section; the nonsubstantive addition of the metric equivalent 
of 200 feet (60.96 meters) after the term of ``200 feet'' in subsection 
(a)(1), and the requirement that the operation plan include a 
description of the coal seam thickness (to be added to subsection 
(a)(1) as item (iii)). The addition of this requirement necessitated 
designating former section (iii) as (iv) and designating former section 
(iv) as (v). The federal rule at 30 CFR 784.20(b)(3) requires a 
subsidence control plan to contain a description of seam thickness. 
Therefore, this addition is no less effective than the federal 
regulations and the Director is approving this portion of the 
amendment.
    Section 89.34. Pennsylvania has made two minor changes in this 
portion of the amendment. Both are found in subsection (a)(1)(i). This 
section lists the information operators must submit in their 
application regarding groundwater. The first sentence of subsection (i) 
formerly read, ``The results of a groundwater inventory of existing 
wells, springs and other groundwater resources, providing information 
on location, quality, quantity, depth to water and usage for the 
proposed permit area and potentially impacted offsite areas.'' The 
first sentence now reads, ``The results of a groundwater inventory of 
existing wells, springs and other groundwater resources, providing 
information on location, ownership, quality, quantity, depth to water 
and usage for the proposed permit area and adjacent area.'' The 
Director finds that the changes to this section are no less effective 
than the requirements for ground water information found in the federal 
regulations at 30 CFR 784.14(b)(1) since the federal rules also require 
ownership information on the proposed permit and adjacent areas. The 
Director is approving the changes to this section.
    Section 89.35. This section involves prediction of the hydrologic 
consequences of mining. The first sentence of the section was modified 
by adding the phrase ``and whether underground mining activities may 
result in contamination, diminution or interruption of any water 
supplies within the permit or adjacent area'' to the end of the 
sentence. The sentence now reads, ``The operation plan shall

[[Page 67032]]

include a prediction of the probable hydrologic consequences of the 
proposed underground mining activities upon the quantity and quality of 
groundwater and surface water within the proposed permit, adjacent and 
general areas under seasonal flow conditions, and whether underground 
mining activities may result in contamination, diminution or 
interruption of any water supplies within the permit or adjacent 
area.''
    The federal regulations regarding this section are found at 30 CFR 
784.14(e)(3)(iv). These regulations require the probable hydrologic 
consequences determination to include findings on whether underground 
mining activities conducted after October 24, 1992, may result in 
contamination, diminution or interruption of a well or spring in 
existence at the time the permit application is submitted and used for 
domestic, drinking, or residential purposes within the permit or 
adjacent areas. The Pennsylvania amendment requires a finding for any 
water supplies within the permit or adjacent area. This would make the 
Pennsylvania program more inclusive than the federal regulation, which 
limits required findings for only those water supplies used for 
domestic, drinking or residential purposes. Since Pennsylvania's 
program would require findings for those water supplies covered by the 
federal program, the Director finds this addition no less effective 
than 30 CFR 784.14(e)(3)(iv) and is approving this portion of the 
amendment.
    Section 89.36. This section describes the information an operator 
needs to submit to ensure the protection of the hydrologic balance. 
Pennsylvania's amendment adds a subsection (c) to this section. 
Subsection (c) states, ``The operation plan shall include a description 
of the measures which will be taken to replace water supplies which are 
contaminated, diminished or interrupted by underground mining 
activities. An operator is not required to provide a replacement water 
supply prior to mining as a condition for securing a permit.''
    The federal regulations regarding information to be submitted in a 
subsidence control plan are found at 30 CFR 784.20. Subsection (b)(8) 
of the federal rule requires a description of the measures to be taken 
in accordance with 30 CFR 817.41(j) and 817.121(c) to replace adversely 
affected protected water supplies or to mitigate or remedy any 
subsidence-related material damage to the land and protected 
structures. Pennsylvania's regulation language is substantively 
identical to and no less effective than the federal regulation with 
regard to replacement of water supplies. The Director is approving this 
portion of the amendment.
    Section 89.67. Pennsylvania is amending subsection (b) by requiring 
surface mining activities associated with an underground mine to be 
conducted in a manner that minimizes damage, destruction or disruption 
of services provided by oil, gas and water wells; oil, gas and coal-
slurry pipelines; railroads; electric and telephone lines; and water 
and sewage lines that pass over, under or through the permit area, 
unless otherwise approved by the owner of those surface facilities and 
the Department. Formerly, this section applied to all underground 
mining activities instead of surface mining activities associated with 
an underground mine, as it now reads.
    In responding to commenters who favored retention of the existing 
language at 25 Pa. Code 89.67(b), Pennsylvania stated in the preamble 
to the proposed regulations that:

    The [Environmental Quality] Board believes that it is 
appropriate to narrow the scope of this regulation to address only 
those activities which take place at surface sites associated with 
an underground mine. There is sufficient authority in Chapter 89, 
Subchapter F (relating to subsidence control) to regulate those 
aspects of the underground mining activity which take place 
underground. Together, these requirements are no less effective than 
the Federal regulation in 30 CFR 817.180. (28 Pa.B. 2768)

    The authority in Chapter 89, Subchapter F of the Environmental 
Quality Board referred to was 25 Pa. Code 89.142a(g)(1). This section 
requires underground mining to be planned and conducted in a manner 
that minimizes damage, destruction or disruption in services provided 
by the same utilities listed in 25 Pa. Code 89.67. As noted in the 
Director's findings regarding 25 Pa. Code 89.142a(g)(1), we found that 
25 Pa. Code 89.142a(g)(1) did not provide the same level of protection 
for utilities that is required under the federal regulations at 30 CFR 
817.180. The Director is requiring 25 Pa. Code 89.142a(g)(1) to be 
amended to insure that all underground mining activities are conducted 
in a manner consistent with 30 CFR 817.180. Please see the Director's 
finding at 25 Pa. Code 89.142a(g)(1) for more information.
    In changing the language of 25 Pa. Code 89.67(b), Pennsylvania has 
limited protection to utilities from surface mining activities 
associated with an underground mine where prior to the proposed 
amendment, protection was extended from underground mining activities. 
However, because of Pennsylvania's reliance on 25 Pa. Code 
89.142a(g)(1) to make 25 Pa. Code 89.67(b) no less effective than the 
federal regulations, the Director believes that the amendment required 
at 25 Pa. Code 89.142a(g)(1) will serve to accomplish that goal. As a 
result, the Director is approving Pennsylvania's amendment to 25 Pa. 
Code 89.67(b) as not inconsistent with 30 CFR 817.180.
    Section 89.141(a). Subsection (a) deals with information operators 
are required to submit regarding the geology overlying the proposed 
permit area. Subsection (a) formerly read, ``The application shall 
include a description of the geology overlying the proposed permit 
area, from the surface down to the first stratum below the coal seam to 
be mined. For the same strata, a detailed description and cross-section 
shall be provided from available test borings and core samples. A copy 
of the information developed for 25 Pa. Code 89.33 (relating to 
geology) may be submitted to meet the requirement in this subsection.''
    The subsection now reads, ``The application shall include a 
description of the geology overlying the proposed permit area, from the 
surface down to the first stratum below the coal seam to be mined. The 
description shall include geologic conditions which are relevant to the 
likelihood or extent of subsidence or subsidence related damage. For 
the same strata, a detailed description and cross-section shall be 
provided from available test borings and core samples. A copy of the 
information developed for 25 Pa. Code 89.33 (relating to geology) may 
be used as appropriate to meet the requirements of this section.''
    The addition of the language requiring information on geologic 
conditions that are relevant to the likelihood or extent of subsidence 
or subsidence related damage makes this section no less effective than 
the federal regulations at 30 CFR 784.20(b)(3), which require the 
subsidence control plan to include a description of the physical 
conditions that affect the likelihood or extent of subsidence and 
subsidence-related damage. The Director is approving this portion of 
the amendment.
    Section 89.141(d). This subsection requires the permit application 
to include a subsidence control plan that describes the measures that 
will be taken to control the subsidence effects from the proposed 
underground mining. In our letter of June 21, 1999, we also indicated 
that 25 Pa. Code 89.141(d) did not address the provisions of 30 CFR 
784.20(b)(8) that require the subsidence control plan to contain a 
description of

[[Page 67033]]

the measures to be taken to replace adversely affected protected water 
supplies or to mitigate or remedy any subsidence-related material 
damage to the land and protected structures.
    Pennsylvania indicated in its response to us dated June 1, 2000, 
that its regulations include requirements to describe the measures to 
be taken to replace adversely affected protected water supplies and 
mitigate subsidence-related material damage to the land and protected 
structures. Requirements relating to descriptions of water supply 
replacement measures are found in 25 Pa. Code 89.36(c). Descriptions of 
the measures to be used to correct material damage to surface land are 
required under 25 Pa. Code 89.141(d)(5). Descriptions of measures to 
prevent irreparable damage to dwellings and agricultural structures are 
required under 25 Pa. Code 89.141(d)(6). Requirements relating to the 
protection of public buildings and other specified structures are found 
in 25 Pa. Code 89.141(d)(3).
    We agree with Pennsylvania that the requirements relating to 
descriptions of measures to remedy contamination, diminution, or 
interruption of water supplies found within 25 Pa. Code 89.36(c) and 
that the descriptions to prevent material damage to surface lands found 
at 25 Pa. Code 89.141(d)(5) are as effective as the requirements found 
in the federal regulations. However, we have found that Pennsylvania's 
amendment does not require the subsidence control plan to contain 
descriptions of measures to mitigate or remedy material damage to non-
commercial buildings and residential structures as required by 30 CFR 
784.20(b)(8). The Pennsylvania program discusses prevention of damage 
to structures but does not discuss the measures in the subsidence 
control plan to be taken once damage has occurred to structures. While 
the Director is able to approve the general requirements of 25 Pa. Code 
89.141(d), subsection (d)(6) is required to be amended to insure that 
the subsidence control plan contains a description of measures to 
mitigate or remedy material damage to all protected structures. See the 
discussion at 25 Pa. Code 89.141(d)(6) for more information regarding 
the required amendment.
    The Director is also requiring 25 Pa. Code 89.141(d) to be amended 
because of the use of the term ``underground mining.'' Please see the 
combined finding regarding use of the term ``underground mining'' as 
opposed to ``underground mining operations'' at the end of the 
regulation section for more information.
    Section 89.141(d)(2). Pennsylvania deleted all the existing wording 
of subsection (d)(2) and added the following wording which requires, 
``A narrative describing whether subsidence, if it is likely to occur, 
could cause material damage to, or diminish the value or reasonably 
foreseeable use of, any structures or could contaminate, diminish, or 
interrupt water supplies.''
    In our letter to Pennsylvania of June 21, 1999, we indicated that 
the term ``if it is likely to occur'' is not the same as the federal 
narrative requirement of 30 CFR 784.20 (a)(2) ``indicating whether 
subsidence, if it occurred, could cause material damage * * *'' We 
indicated that the federal term requires more information because it 
would tell the public whether material damage or water loss would occur 
if subsidence occurred. PADEP regulations would only tell the public 
whether material damage or water loss would occur if subsidence is 
likely to occur. We also stated that while 30 CFR 784.20(a)(2) requires 
the narrative to take into account subsidence effects on ``renewable 
resource lands,'' 25 Pa. Code 89.141(d)(2) fails to include ``renewable 
resource lands.''
    In its response of June 1, 2000, Pennsylvania indicated that its 
regulation at 25 Pa. Code 89.141(d) requires a subsidence control plan 
for all underground mines without regard to the presence of overlying 
structures, water supplies or renewable resource lands or whether or 
not those structures and features could suffer material damage as a 
result of mine subsidence. In doing so, Pennsylvania noted that its 
regulations are as effective as 30 CFR 784.20(a)(2). Through these 
plans, DEP and the general public can see how planned mining interfaces 
with overlying structures and features.
    Pennsylvania further noted that in regard to the terminology, there 
is no practical difference between the phrase ``if it is likely to 
occur'' and ``if it occurred'' for the purpose of predicting the level 
of damage. As a practical matter, when full extraction (either longwall 
mining or pillar extraction during retreat mining) is the principal 
method of mining, the applicant will always provide information about 
what will happen when subsidence occurs. In addition, by requiring 
descriptions of effects in areas where subsidence is ``likely to 
occur,'' the Pennsylvania regulations provide information that is less 
speculative. Pennsylvania noted that its regulations provide the 
general public with more usable information. DEP can predict whether or 
not subsidence will occur and affect these features. DEP also evaluates 
the stability of underground mine workings to ensure that subsidence 
will not occur in locations where it is not planned.
    The Director finds that Pennsylvania's explanation is logical and 
makes this portion of the amendment no less effective than the federal 
provision at 30 CFR 784.20(a)(2).
    Section 89.141(d)(3). This subsection requires that, for each 
structure and feature, or class of structures and features, described 
in 25 Pa. Code 89.142a(c) (which include public buildings and 
facilities, churches, schools and hospitals, certain sized impoundments 
and bodies of water, and bodies of water or aquifers which serve as a 
significant source to a public water supply system), there must be a 
description of the measures to be taken to ensure that subsidence will 
not cause material damage to, or reduce the reasonably foreseeable uses 
of, the structures or features. The federal rule at 30 CFR 784.20(b)(5) 
requires for non-planned subsidence a description of measures that will 
be taken to prevent or minimize subsidence and subsidence related 
damage. The federal rule does not limit the descriptions to specific 
structures or features, while Pennsylvania's regulation does limit the 
description to specified structures and features. Therefore, the 
Director finds that to the extent a description is required of some 
structures and features, this section is no less effective than 30 CFR 
784.20(b)(5). However, to the extent that the description is not all 
inclusive (for example, dwellings, buildings accessible to the public, 
and noncommercial buildings customarily used by the public would not be 
included), the Director is requiring that Pennsylvania amend its 
program to provide the protections of 30 CFR 784.20(b)(5).
    Section 89.141(d)(4). This section provides that a subsidence 
control plan must include a description of the anticipated effects of 
planned subsidence, if any. The Director finds that this regulation is 
substantively identical to, and no less effective than, the federal 
regulation at 30 CFR 784.21(b)(6) and is approving it.
    Section 89.141(d)(5). This section requires subsidence control 
plans to include a description of the measures to be taken to correct 
any subsidence-related material damage to the surface land. The 
Director finds that this regulation is substantively identical to, and 
no less effective than, the portion of the federal regulation at 30 CFR 
784.21(b)(8) that requires subsidence control plans to provide a 
description of measures to be taken to mitigate or remedy any 
subsidence-related material

[[Page 67034]]

damage to the land. The Director is approving this portion of the 
amendment.
    Section 89.141(d)(6). This section requires that the subsidence 
control plan include a description of measures to be taken to correct 
any subsidence-related material damage to the structures enumerated in 
25 Pa. Code 89.142a(f)(1)(iii)-(v), if the structure owner does not 
consent to the damage. In our letter to Pennsylvania dated June 21, 
1999, we indicated that the federal rules do not have an irreparable 
damage standard. For occupied dwellings and non-commercial structures, 
the federal rules apply a no material damage standard for non-planned 
subsidence and, a minimize damage standard for planned subsidence 
(unless waived by the owner) [see sections 30 CFR 784.20(b)(7), 
817.121(a)(1), and 817.121(a)(2)]. Under OSM regulations for non-
planned subsidence, subsidence-related material damage must be 
prevented (see 30 CFR 817.121(a)(1)) for all structures and features. 
We indicated that the Pennsylvania regulations do not require the 
prevention of material damage for occupied dwellings and non-commercial 
structures (except those specifically protected under 25 Pa. Code 
89.142a(c): public buildings and facilities, churches, schools, etc., 
which is the same as OSM's list at 30 CFR 817.121(d)).
    In its response letter to us dated June 1, 2000, Pennsylvania 
indicated that:


    Section 817.121 does not unequivocally require permittees to 
prevent material damage to occupied dwellings. It only requires 
prevention of material damage to the extent technologically and 
economically feasible. If prevention of material damage is not 
technologically feasible, the permittee need not prevent material 
damage. More importantly, the federal regulation provides that 
material damage need not be prevented if it is not economically 
feasible. The federal regulation clearly provides for economics to 
determine whether preventive measures are employed instead of the 
repair or compensation remedy. Similarly, under Pennsylvania's 
regulation a permittee will prevent the material damage from 
occurring if it is more cost effective than paying for repairs or 
compensation. The Pennsylvania regulation is actually more effective 
at protecting homes than the federal regulation, because the federal 
regulation allows for economics to always be the determining factor 
as to whether any damage prevention measures will be employed by the 
permittee regardless of the magnitude of damage. The Pennsylvania 
regulation prohibits economics from being the determinative factor 
if subsidence will cause irreparable damage. If Pennsylvania 
determines that the proposed mining will result in irreparable 
damage to occupied dwellings and appurtenant structures or 
agricultural structures, it will notify the operator that the 
proposed mining will not be allowed to occur unless the structure 
owner consents to the damage or the mine operator agrees to take 
surface measures to minimize or reduce the level of expected damage. 
See section 89.141(d)(6) and section 89.142a(d).

    The federal regulation at 30 CFR 784.20(b)(5) requires a 
description of the measures to prevent or minimize subsidence damage to 
structures. The federal regulation at 30 CFR 784.20(b)(7) requires 
that, with certain exceptions, when planned subsidence is projected to 
be used, the subsidence control plan is to contain a description of the 
methods to be employed to minimize damage from subsidence to non-
commercial buildings and occupied residential dwellings. Neither the 
Pennsylvania statute nor the Pennsylvania regulations state the 
requirement that an operator must prevent and/or minimize for material 
damage to occupied residential dwellings and community or institutional 
buildings not included in 25 Pa. Code 89.141(d)(3) (see Pennsylvania's 
response to section 9.1(b) and 28 Pa.B. 2768, ``[d]wellings * * * are 
protected against irreparable damage but not against lesser levels of 
damage.'').
    The Director is approving 25 Pa. Code 89.141(d)(6) to the extent 
that it provides a description of measures to prevent irreparable 
damage. However, to the extent the damage to occupied residential 
dwellings and structures related thereto and community or institutional 
buildings are not protected in 25 Pa. Code 89.141(d)(3) and they are 
materially damaged but not irreparably damaged, the Director is 
requiring Pennsylvania to amend 25 Pa. Code 89.141(d)(6) to insure that 
the requirements of 30 CFR 784.20(b)(5) and (b)(7) are met.
    Section 89.141(d)(7). This section requires subsidence control 
plans to contain a description of the monitoring, if any, the operator 
will perform to determine the occurrence and extent of subsidence so 
that, when appropriate, other measures can be taken to prevent, reduce 
or correct damage.
    The Director is approving this portion of the amendment because it 
is no less effective than 30 CFR 784.20(b)(4), which requires the 
subsidence control plans to contain a description of monitoring needed 
to determine the commencement and degree of subsidence so that measures 
can be taken to prevent, reduce or correct material damage.
    Section 89.141(d)(8). This section requires subsidence control 
plans to contain a description of the measures to be taken to maximize 
mine stability and maintain the value and reasonably foreseeable use of 
the surface land.
    There is no federal regulation that directly corresponds to this 
provision. The Director is approving this section because its purpose 
is in keeping with the federal requirements that a permittee adopt 
measures that will maximize mine stability and maintain the value and 
reasonably foreseeable use of surface lands found in 30 CFR 
817.121(a)(1). Additionally, the information required in the subsidence 
control plan by 25 Pa. Code 89.141(d)(8) is consistent with the federal 
regulation at 30 CFR 784.20(b)(9), which allows the regulatory 
authority to require information to demonstrate that the operation will 
be conducted in accordance with 30 CFR 817.121.
    Section 89.141(d)(9). Under this subsection, Pennsylvania requires 
a description of measures, and discussion of the effectiveness of such 
measures, that will be taken to maintain the value and foreseeable uses 
of perennial streams that may be impacted by underground mining. The 
Director is approving this section because it provides information 
similar to that in previously approved 25 Pa. Code 89.141(d)(2), which 
required a discussion of perennial streams based on 25 Pa. Code 
89.143(d)(1). Section 89.141(d)(9) is also consistent with the 
requirements of 30 CFR 784.20(b)(8), which calls for the permit 
subsidence control plan to contain a description of the measures to be 
taken to mitigate any subsidence-related material damage to the land 
(including perennial streams). However, the Director is requiring this 
section to be amended because of the use of the term ``underground 
mining.'' Please see the combined finding regarding use of the term 
``underground mining'' as opposed to ``underground mining operations'' 
at the end of the regulation section for more information.
    Section 89.141(d)(10). This section requires the subsidence control 
plan to include a description of the measures to be taken to prevent 
material damage to perennial streams and aquifers that serve as a 
significant source to a public water supply system. The Director is 
approving this section because it provides information similar to that 
in previously approved 25 Pa. Code 89.141(d)(2), which required a 
discussion regarding the protection of perennial streams and aquifers 
that serve as a significant source to a public water supply system 
based on 25 Pa. Code 89.143(b). The Director also finds 25 Pa. Code 
89.141(d)(10) is consistent with the requirements of 30 CFR

[[Page 67035]]

817.121(d), which calls for the protection of any aquifer or body of 
water that serves as a significant water source for a public water 
supply system.
    Section 89.141(d)(11). This section requires subsidence control 
plans to include a description of utilities and a description of the 
measures to be taken to minimize damage, destruction, or disruption of 
utility service. There is no federal regulation that corresponds 
directly to this portion of Pennsylvania's program. However, it is 
consistent with 30 CFR 817.180, which requires that all underground 
mining activities must be conducted in a manner that minimizes damage, 
destruction or disruption of services provided by wells, pipelines, 
railroads, electric and telephone lines, and water and sewage lines. It 
is also consistent with 30 CFR 784.20(b)(9), which requires subsidence 
control plans to contain information specified by the regulatory 
authority necessary to demonstrate that the operation will be conducted 
in accordance with 30 CFR 817.121. The Director is approving this 
section.
    Section 89.142. Pennsylvania is deleting this entire section that 
required a permittee to submit a general mine map and a six-month map. 
These provisions have been moved, with some modifications, to 25 Pa. 
Code 89.154. The modifications include removal of reference to 
structures in place as of April 27, 1966. Pennsylvania replaced those 
provisions with requirements that mine maps include the structures 
listed in 25 Pa. Code 89.142a(f)(1)(i)-(iv) as well as dwellings, 
public buildings and facilities, churches, schools, and hospitals. The 
Director is approving the deletion of 25 Pa. Code 89.142 because the 
deletion of references to April 27, 1966, provides protections no less 
effective than those found in the federal regulations and because the 
remaining provisions of 25 Pa. Code 89.142 can be found in 25 Pa. Code 
89.154.
    Section 89.142a(a). This section requires underground mining to be 
planned and conducted in accordance with requirements found in 
subsections (1) through (4). The Director is requiring this section to 
be amended because of the use of the term ``underground mining.'' 
Please see the combined finding regarding use of the term ``underground 
mining'' as opposed to ``underground mining operations'' at the end of 
the regulation section for more information.
    Section 89.142a(a)(1). This section requires underground mining to 
be planned and conducted in accordance with the subsidence control plan 
and the postmining land use requirements in 25 Pa. Code 89.88. There is 
no direct counterpart in federal regulations to this section. The 
Director is approving 25 Pa. Code 89.142a(a)(1) because it is 
consistent with the requirements of 30 CFR 784.20(b), which requires 
subsidence control plans as part of the permit application if premining 
surveys show that subsidence damage would occur and 30 CFR 773.11, 
which requires permits for operators to engage in mining operations.
    Section 89.142a(a)(2). This section requires underground mining to 
be planned and conducted in accordance with the performance standards 
in subsections (b)-(j). There is no direct federal counterpart to this 
section. The Director is approving this section because it is 
consistent with the requirements of 30 CFR 817.121, which provide the 
subsidence control performance standards to be followed when conducting 
underground mining.
    Section 89.142a(a)(3). This section provides that underground 
mining will not be authorized beneath structures where the depth of 
overburden is less than 100 feet unless the subsidence control plans 
demonstrate that the mine workings will be stable and that overlying 
structures will not suffer irreparable damage. There is no direct 
federal counterpart. The Director is approving this portion of the 
amendment because it is consistent with the federal regulation at 30 
CFR 817.121(a)(1) that requires permittees to adopt measures consistent 
with known technology that prevent subsidence from causing material 
damage, maximize mine stability and maintain the value and reasonably 
foreseeable use of surface lands.
    Section 89.142a(a)(4). This section requires mine operators to 
adopt measures to maximize mine stability. This section also states 
that it does not prohibit planned subsidence or room and pillar mining. 
Section 817.121(a)(1) of the federal rules requires operators to 
maximize mine stability. Additionally, Sec. 720(a)(2) of SMCRA states 
that nothing in Sec. 720 of SMCRA shall prohibit underground coal 
mining operations. Therefore, this provision is not inconsistent with 
the requirements of SMCRA and the federal regulations and the Director 
is approving it.
    Section 89.142a(b). This section lists the requirements for 
conducting surveys of protected structures and the conditions that 
relieve an operator from conducting a survey. As noted in the December 
22, 1999, Federal Register (64 FR 71652), OSM suspended the portion of 
30 CFR 784.20(a)(3) that required a specific structural condition 
survey of all EPAct protected structures. We suspended this regulation 
to make our rules consistent with a decision of the U.S. Court of 
Appeals for the District of Columbia Circuit [National Mining 
Association v. Babbitt, 173 F.3d 906 (1999)]. However, state regulatory 
authorities have the option of retaining the premining surveys. 
Pennsylvania has not indicated that it wishes to eliminate the survey 
requirements. Since there is no federal counterpart and because the 
survey will provide additional information to the regulatory authority, 
the Director is approving 25 Pa. Code 89.142a(b) and the related 
subsections (b)(1)(i)-(v) and (b)(2)(i)-(iii). This section is not 
inconsistent with the requirements of SMCRA and the federal 
regulations. The Director does note that Pennsylvania may be required 
to submit a program amendment to conform with any future federal rules 
regarding structure surveys.
    Section 89.142a(c)(1). This section provides that no underground 
mining shall be conducted beneath or adjacent to public buildings and 
facilities, churches, schools and hospitals, impoundments with a 
storage capacity of 20 acre-feet (2.47 hectare-meters) or more, or 
bodies of water or aquifers that serve as significant sources to public 
water supply systems unless the subsidence control plan demonstrates 
that subsidence will not cause material damage to, or reduce the 
foreseeable use of, the structures. This provision is similar to 
section 9.1(c) (52 P.S. 1406.9a(c)) of the BMSLCA that the Director 
approved. However, there is a difference in the language between 
Pennsylvania's statute and its regulation. The regulation only 
restricts underground mining beneath or adjacent to the listed 
facilities, while the statute restricts underground mining activities 
beneath or adjacent to the listed facilities. This is significant 
because the federal regulations (as noted in the definition of 
underground mining activities at 30 CFR 701.5) restrict surface 
operations incident to underground extraction of coal or in situ 
processing, such as construction, use, maintenance, and reclamation of 
roads, above-ground repair areas, storage areas, processing areas, 
shipping areas, areas upon which are sited support facilities including 
hoist and ventilating ducts, areas utilized for the disposal and 
storage of waste, and areas on which materials incident to underground 
mining operations are placed. The Pennsylvania regulation would 
restrict only underground mining which is defined in the Pennsylvania 
regulations

[[Page 67036]]

at 25 Pa. Code 89.5 as the extraction of coal in an underground mine.
    However, the Director is approving this section of the regulations 
because the statutory language of section 9.1(c) (52 P.S. 1406.9a(c)) 
of the BMSLCA is controlling over the conflicting language of the 
regulation. Accordingly, the Director finds that 25 Pa. Code 
89.142a(c)(1), when read in conjunction with section 9.1(c) (52 P.S. 
1406.9a(c)) of the BMSLCA, is no less effective than the federal 
regulations at 30 CFR 817.121(d).
    Section 89.142a(c)(2)(i)-(v). This section lists the measures to be 
adopted by the operator to comply with 25 Pa. Code 89.142a(c)(1). The 
requirements include limiting the percentage of coal extracted, 
specifications on the size and configuration of the support area, 
backfilling or backstowing of voids, leaving areas in which no coal 
extraction will occur, and initiating a monitoring program to detect 
surface movement. The Director is approving subsections 
89.142a(c)(2)(i) (A)-(D), (ii), (iii), (iv), and (v) because these 
requirements are substantively the same or no less effective than the 
federal requirements at 30 CFR 784.20(b)(5).
    Section 89.142a(c)(2)(vi). This subsection requires a monitoring 
program to detect surface movement resulting from underground mining. 
The monitors are to be placed sufficiently in advance of the 
underground mining so that it can be stopped before protected 
structures or features are damaged.
    In our letter to Pennsylvania of June 21, 1999, we indicated that 
this section appears to be less effective than the federal regulations 
because it does not require monitoring in conformance with 30 CFR 
784.20(b)(4) of occupied dwellings, non-commercial structures and 
surface lands.
    In its response of June 1, 2000, Pennsylvania indicated that:

    30 CFR 784.20(b)(4) provides that an application shall contain a 
description of the monitoring, if any, needed to determine the 
extent of subsidence that may occur so that appropriate mitigation 
measures can be implemented. It does not, as OSM suggests in its 
comment, ``require'' monitoring. In any event, section 
89.142a(c)(2)(vi) was not intended to implement the provisions of 
Sec. 784.20(b)(4). Instead, section 89.141(d)(7) (which virtually 
mirrors the federal regulation) is designed to do so. Clearly, 
section 89.141(d)(7) is as effective as Sec. 784.20(b)(4) in regard 
to the monitoring of occupied dwellings, noncommercial structures 
and surface land.

    There is no direct counterpart in federal regulations to this 
section. The Director agrees with Pennsylvania's explanation and is 
approving this section with regard to the monitoring program because 
the monitoring required will help operators and Pennsylvania to 
determine if subsidence is likely to affect protected structures and 
features and is consistent with the federal regulations in providing 
protection to those structures or features.
    Section 89.142a(c)(3). This subsection states that if the measures 
implemented by the operator cause material damage or reduce the 
reasonably foreseeable use of structures or features listed in 
paragraph (1), the department will impose additional measures to 
minimize the potential for these effects. In our letter to Pennsylvania 
dated June 21, 1999, we indicated that the federal rule at 30 CFR 
817.121(e) states that if there is material subsidence damage to 
structures listed in 30 CFR 817.121(d), then the regulatory authority 
may suspend mining under or adjacent to such structures or facilities 
until the subsidence control plan is modified to ensure prevention of 
further material damage. Section 30 CFR 784.20(b)(4) requires the 
subsidence control plan to contain, ``A description of the monitoring, 
if any, needed to determine the commencement and degree of subsidence 
so that, when appropriate, other measures can be taken to prevent, 
reduce or correct material damage in accordance with Sec. 817.121(c) of 
this chapter.'' When taken together, the EPAct sections mean that the 
prevention of material damage (and not ``minimize the potential'') 
standard is in place. We further indicated to Pennsylvania that this 
section appears to be less effective than the federal regulations 
because it does not include the option for Pennsylvania to suspend 
mining or have the subsidence control plan modified to ensure 
prevention of further material damage.
    In its response to us of June 1, 2000, Pennsylvania indicated that:

    OSM has intertwined various regulatory sections resulting in a 
misinterpretation of the federal regulations to assert a standard 
that does not exist and is not supported by the federal regulations. 
Although the language of section 89.142a(c)(3) differs somewhat from 
that of 30 CFR 817.121(e), the intended result is the same--
increased protection of public buildings, etc. that are susceptible 
to damage by mine subsidence. Therefore, the Pennsylvania regulation 
is as effective as the federal regulation. In order for the 
provisions of section 89.142a(c)(3) to come into play, the measures 
previously proposed by the operator and approved by DEP must have 
failed to adequately protect one or more of the structures or 
features listed in paragraph (c)(1). At that point it is necessary 
to impose additional restrictions or require additional protective 
measures to ensure that other protected structures or features will 
not be materially damaged by subsidence. Since it could be argued 
that the failed measures were designed to ``prevent material 
damage,'' a new standard providing greater protection must be 
targeted. In setting this standard, DEP chose the phrase ``minimize 
the potential for these effects'' to clarify that new measures must 
be proposed and that these measures must be sufficient to further 
reduce the likelihood of effects similar to those observed.

    OSM agrees with Pennsylvania that 25 Pa. Code 89.142a(c)(3) and 30 
CFR 817.121(e) increase protection of the structures and surface 
features at 25 Pa. Code 89.142a(c)(1) and 30 CFR 817.121(d), 
respectively. However, 30 CFR 817.121(e) imposes on the regulatory 
authority the obligation to require permittees to modify subsidence 
control plans to ensure the prevention of further material damage in 
the cases where the initial plan or operator's actions fail. In 
addition, 30 CFR 817.121(e) provides the authority to suspend mining 
until such a plan is approved. Pennsylvania's response to OSM did not 
establish that the regulations at 25 Pa. Code 89.142a(c)(3) allow 
Pennsylvania the discretion to suspend mining until the operator's 
subsidence control plan ensures the prevention of further material 
damage. Pennsylvania's regulation merely requires additional measures 
to minimize the effects, but does not give Pennsylvania the option to 
stop the mining until Pennsylvania reviews the additional measures and 
determines that the measures will minimize the effects. The Director is 
requiring Pennsylvania to amend its regulations to address the 
requirement.
    Section 89.142a(d). This section provides that if the Department 
determines and notifies a mine operator that a proposed mining 
technique or extraction ratio will result in irreparable damage to a 
structure in subsection (f)(1)(iii)-(v), the operator may not use the 
technique or extraction ratio unless the building owner, prior to 
mining, consents to the mining or the operator, prior to mining, takes 
measures approved by the Department to minimize or reduce the impacts 
resulting from subsidence to these structures. The federal regulations 
at 30 CFR 817.121(a) require that operations, depending on the type, 
must either prevent or minimize material damage to occupied residential 
dwellings and community or institutional buildings. The federal 
regulations do not provide for an irreparable damage standard. As a 
result, the provisions of this section are no less effective than the 
federal regulations regarding structures in danger of being irreparably 
damaged,

[[Page 67037]]

but it is less effective in regard to structures that may be materially 
damaged because it provides no protection for those structures. While 
this section can be approved for structures in danger of being 
irreparably damaged, the Director is requiring Pennsylvania to amend 
its program to insure that structures in danger of being materially 
damaged are protected also.
    Section 89.142a(e). This section requires operators to correct 
material damage to surface lands resulting from subsidence to the 
extent technologically and economically feasible. In our letter of June 
21, 1999, to Pennsylvania we noted that this section did not require, 
as 30 CFR 817.121(c)(1) does, the permittee to restore the land ``to a 
condition capable of maintaining the value and reasonably foreseeable 
uses that it was capable of supporting before subsidence damage.''
    In its response to us of June 1, 2000, Pennsylvania stated that the 
operator is required to correct material damage as defined by 25 Pa. 
Code 89.5 and that since the definition of ``material'' includes those 
components required in 30 CFR 817.121(c)(1), when 25 Pa. Code 
89.142a(e) is read in conjunction with 25 Pa. Code 89.5, it is as 
effective as 30 CFR 817.121(c)(1).
    The Director agrees with Pennsylvania's interpretation and is 
approving this section because when it is read in conjunction with 25 
Pa. Code 89.5, it is no less effective than 30 CFR 817.121(c)(1) 
regarding correction of material damage to surface lands.
    Section 89.142a(f)(1). This section requires correction of damage 
to protected structures from underground mining conducted on or after 
August 21, 1994. The federal regulations at 30 CFR 817.121(c)(1) and 
(2) state that the permittee must correct any material damage resulting 
from subsidence caused to surface lands or structures. Pennsylvania's 
definition of underground mining only relates to extraction of coal, 
therefore subsidence from other underground mining activities (such as 
underground construction, operation and reclamation of shafts, adits, 
underground support facilities, in situ processing, and underground 
hauling, storage, and blasting) would not be covered. As a result, this 
portion of the amendment is less inclusive than the federal regulations 
that require repair of structures damaged by subsidence. The Director 
is requiring Pennsylvania to amend this section to insure that 
protected structures damaged by subsidence are repaired. Please see the 
combined finding regarding use of the term ``underground mining'' as 
opposed to ``underground mining operations'' at the end of the 
regulation section for more information.
    Additionally, this section is not as effective as 30 CFR 
817.121(c), which requires permittees to promptly repair or compensate 
owners for material damage caused by subsidence. Section 89.142a(f)(1) 
does not contain any standard requiring operators to show a diligent 
and timely effort in repairing structures or compensating landowners 
for subsidence damage. For further information on the standard 
requiring prompt repair or compensation, see the Director's decision on 
section 5.4 of the BMSLCA. The Director is requiring this section to be 
amended to be no less effective than 30 CFR 817.121(c) in requiring 
prompt repair or compensation to landowners.
    Section 89.142a(f)(1)(i) and (ii). These sections list the type of 
structures that operators are responsible for repairing or providing 
compensation for damages to landowners when underground mining causes 
subsidence damage. Subsections (i) and (ii) are nearly identical to the 
statutory sections of 5.4(a)(1) and (a)(2). Therefore, the findings for 
5.4(a)(1) and (a)(2) are incorporated herein by reference and the 
Director is approving subsection (i) and (ii).
    Section 89.142a(f)(1)(iii). This section provides for compensation 
for damage to dwellings that are used for human habitation and 
permanently affixed appurtenant structures or improvements in place on 
August 21, 1994, or on the date of first publication of the application 
for a coal mining activity permit or a 5-year renewal thereof for the 
operations in question and within the boundary of the entire mine as 
depicted in the application. This section is similar to section 
5.4(a)(3) of the BMSLCA. In section 5.4(a)(3) the Director did not 
approve the language `` * * * in place on the effective date of this 
section or on the date of first publication of the application for a 
Mine Activity Permit or a five-year renewal thereof for the operations 
in question and within the boundary of the entire mine as depicted in 
said application.'' For the same reasons, the Director is not approving 
the language, `` * * * or on the date of first publication of the 
application for a coal mining activity permit or a 5-year renewal 
thereof for the operations in question and within the boundary of the 
entire mine as depicted in the application,'' from 25 Pa. Code 
89.142a(f)(1)(iii).
    Section 89.142a(f)(1)(iv) and (v). These sections address 
agricultural structures that are protected under Pennsylvania's 
program. Pursuant to 30 CFR 817.121(c)(3), repair or compensation for 
material damage to agricultural structures is required to the extent 
allowed under state law. The Director is approving these sections 
because they protect structures not covered under federal regulations 
and they are consistent with 30 CFR 817.121(c)(3).
    Section 89.142a(f)(2)(i). This section provides for compensation to 
landowners for subsidence damages to structures rather than repair. The 
federal regulations require the compensation to be in the full amount 
of the decrease in value of the structure resulting from the 
subsidence. Pennsylvania's amendment provides that compensation is to 
be equal to the reasonable cost of repairing the structure or if the 
structure is determined to be irreparably damaged, the compensation 
shall be equal to the reasonable cost of its replacement. These 
standards for compensation are the same as those in 5.4(a) (52 P.S. 
1406.5d(a)) of BMSLCA. Therefore, the finding for 5.4(a) (52 P.S. 
1406.5d(a)) is incorporated herein by reference and the Director is 
approving this portion of the regulation.
    The Pennsylvania amendment also discusses damage to agricultural 
structures. Pursuant to 30 CFR 817.121(c)(3), repair or compensation 
for material damage to agricultural structures is required to the 
extent allowed under state law. The Director is approving this portion 
of the amendment because it provides for protection for structures that 
are not protected under the federal regulations and is consistent with 
30 CFR 817.121(c)(3).
    However, the Director is requiring this section to be amended 
because of the use of the term ``underground mining.'' Please see the 
combined finding regarding use of the term ``underground mining'' as 
opposed to ``underground mining operations'' at the end of the 
regulation section for more information.
    Section 89.142a(f)(2)(ii). This section provides for operators to 
compensate occupants of covered structures for payment of reasonable, 
actual expenses incurred during temporary relocation. The section 
further provides that the operator shall also compensate the occupants 
for other actual reasonable incidental costs agreed to by the parties 
or approved by the Department.
    There is no direct federal counterpart for this regulation. This 
portion of the amendment affords a benefit to occupants of subsidence-
damaged structures that goes beyond the protections in the federal 
regulations. The Director finds that the section is not inconsistent 
with the requirements of

[[Page 67038]]

SMCRA and the federal regulations and is approving it.
    Section 89.142a(g)(1). Subsection (1) provides that underground 
mining must be planned and conducted in a manner that minimizes damage, 
destruction or disruption in services provided by utilities. 
Underground mining is defined in Pennsylvania's regulations as the 
extraction of coal in an underground mine. The federal rule at 30 CFR 
817.180 requires that all underground mining activities, not just 
underground mining, must be planned and conducted in a manner that 
minimizes damage, destruction or disruption in services provided by 
utilities. The federal definition of underground mining activities is a 
combination of two parts. The first includes surface operations 
incident to underground extraction of coal or in situ processing, such 
as construction, use, maintenance, are reclamation of roads, above-
ground repair areas, storage areas, processing areas, shipping areas 
upon which are sited support facilities including hoist and ventilation 
ducts, areas utilized for the disposal and storage of waste, and areas 
on which materials incident to underground mining are placed. The 
second part includes underground operations such as underground 
construction, operation and reclamation of shafts, adits, underground 
support facilities, in situ processing, and underground mining, 
hauling, storage, and blasting. Thus, the federal rule is more 
inclusive of the activities that must be conducted in a manner that 
minimizes damage, destruction or disruption in services.
    The Director is approving this section to the extent that 
underground mining must be planned and conducted in a manner that 
minimizes damage, destruction or disruption to utilities. However, the 
Director is requiring Pennsylvania to amend its program to require all 
underground mining activities be conducted in a manner consistent with 
30 CFR 817.180.
    Section 89.142a(g)(2). Subsection (2) provides a list of measures 
an operator may take to minimize damage, destruction or disruption in 
services from utilities listed in 25 Pa. Code 89.142a(g)(1). There is 
no direct federal counterpart to this regulation. The Director is 
approving this section because it lists specific measures operators may 
implement to insure that utilities can continue to provide their 
services. These measures are not inconsistent with the requirements of 
SMCRA and the federal regulations.
    Section 89.142a(g)(3). This section provides that a mine owner 
shall take measures to minimize damage to customer-owned gas and water 
service connections. In our letter of June 21, 1999, we noted that 
since customer-owned gas and water service connections are part of a 
residential dwelling (see definition of ``permanently affixed 
appurtenant structures'' at 25 Pa. Code 89.5), Pennsylvania should 
require the prevention of subsidence from causing material damage to 
the extent feasible for non-planned subsidence and minimize, repair and 
compensate for planned subsidence.
    In its response to us of June 1, 2000, Pennsylvania noted:

    Under Pennsylvania's program a mine operator must either remove 
enough coal to induce planned subsidence or leave support that will 
maximize mine stability. If mining will result in planned 
subsidence, a mine operator is required to take measures to minimize 
damage to customer-owned gas and water service connections, unless 
the property owner does not consent to allow the measure to be 
taken. If mining will not result in planned subsidence, the workings 
must be designed to remain stable in accordance with section 
89.142a(a)(4), thereby precluding material damage that would result 
from unplanned subsidence.

    The Director is approving this portion of the amendment. The 
federal rule at 30 CFR 817.121 requires the permittee to prevent (to 
the extent it is technologically and economically feasible) damage when 
the mining does not result in unplanned subsidence. The federal rule at 
30 CFR 817.121(a)(2) requires minimization of subsidence damage for 
occupied residential dwellings and structures related thereto, which by 
definition includes utilities. The exception to this minimization 
requirement is if the permittee has the written consent of the owner. 
Since 25 Pa. Code 89.142a(a)(4) prohibits material damage whenever 
there is unplanned subsidence and 25 Pa. Code 89.142a(g)(3) requires an 
operator to minimize damage to customer utility connections unless the 
owner prohibits such measures, these sections together protect 
customer-owned gas and water service connections to the extent required 
by the federal regulations and are no less effective than the federal 
regulations.
    Section 89.142a(g)(4). This section requires the Department to 
suspend or restrict underground mining if it determines that mining 
beneath or adjacent to a utility will present an imminent hazard to 
human safety. In our letter to Pennsylvania of June 21, 1999, we 
indicated that the federal rules at 30 CFR 817.121(f) do not have the 
option of restricting underground mining but provide only for 
suspension of underground mining activities in imminent hazard 
situations. While the federal regulations require suspension of 
underground mining beneath or adjacent to a utility if it presents an 
imminent hazard to human safety, the Pennsylvania rules would allow the 
Department to restrict mining in this situation. The term ``restrict'' 
denotes that mining, in some fashion, could continue. By providing the 
option to allow mining to continue, this section appears to be less 
effective than the federal regulations.
    In its response to us of June 1, 2000, Pennsylvania indicated that 
in writing its regulations, PADEP decided to use the term ``restrict'' 
rather than the term ``suspend'' in describing the appropriate action 
to be taken when an imminent hazard is recognized. The term 
``restrict'' can be applied to limit the percentage of coal extracted 
where there is a need to prevent subsidence that would, in turn, give 
rise to a hazardous situation. The term ``restrict'' can also be 
applied to prevent mining from encroaching into a specified area or 
delay mining until damage prevention measures are taken at the land 
surface. By contrast, the term ``suspend,'' as defined by Webster's 
Dictionary, only seems to imply a temporary cessation of mining. PADEP 
believes its choice of terms more clearly indicates there must be a 
final outcome in which there is no imminent hazard to human safety 
resulting from mining. Irrespective of the term used, PADEP believes 
that both the Pennsylvania and the federal regulation are applied in 
the same manner to prevent imminent hazards to human safety.
    Based on Pennsylvania's interpretation of the word ``restrict,'' 
the Director is approving this regulation. In effect, this would give 
Pennsylvania authority to suspend operations when necessary. In this 
manner, the Pennsylvania program will be no less effective than the 
federal program with regard to suspension of operations that could 
involve imminent harm situations.
    Section 89.142a(h)(1) and (2). Section 89.142a(h)(1) formerly 
appeared at 25 Pa. Code 89.143(d)(1). Section 89.143(d)(1) was deleted 
by this amendment and its provisions moved, with some modification, to 
25 Pa. Code 89.142a(h)(1). The provision read, prior to deletion, 
``[U]nderground mining activities shall be planned and conducted in a 
manner which maintains the value and reasonably foreseeable uses of 
perennial streams, such as aquatic life, water supply and recreation, 
as they existed prior to mining beneath streams.'' The provision

[[Page 67039]]

at 25 Pa. Code 89.142a(h)(1) deletes the word ``activities'' and 
changes ``mining beneath streams'' to ``coal extraction beneath 
streams.''
    Section 89.142a(h)(2) formerly appeared at 25 Pa. Code 
89.143(d)(3). Section 89.143(d)(3) was deleted by this amendment and 
its provisions moved, with some modifications, to 25 Pa. Code 
89.142a(h)(2). The provision read, prior to deletion, ``[I]f the 
Department finds that the measures have adversely affected a perennial 
stream, the operator shall meet the requirements of [section] 89.145(a) 
(relating to surface owner protection) and file revised plans or other 
data to demonstrate that future activities will meet the requirements 
of paragraph (1).'' The section now reads, ``[I]f the Department finds 
that underground mining has adversely affected a perennial stream, the 
operator shall mitigate the adverse effects to the extent 
technologically and economically feasible, and, if necessary, file 
revised plans or other data to demonstrate that future underground 
mining will meet the requirements of paragraph (1).'' As can be seen, 
there are two changes to this section: (1) the revised regulation 
defines the operator's responsibility to mitigate adverse effects to 
perennial streams to the extent technologically and economically 
feasible, and (2) substituting the phrase ``underground mining'' for 
``future activities.''
    The Director is approving the change in 25 Pa. Code 89.142a(h)(2) 
regarding the operator's responsibility to mitigate adverse effects to 
perennial streams. Under federal requirements, perennial streams are a 
component of surface lands and are regulated relative to planned and 
unplanned subsidence. See 60 FR at 16725. For unplanned subsidence (30 
CFR 784.20(b)(5)), permittees must take measures on the surface to 
prevent or minimize material damage or diminution in value of the 
surface. For planned subsidence, material damage does not have to be 
prevented; however, the permittee must correct any material damage 
resulting from subsidence caused to surface lands, to the extent 
technologically and economically feasible, by restoring the land to a 
condition capable of maintaining the value and reasonably foreseeable 
uses that it was capable of supporting before subsidence damage 
(817.121(c)(1)). Since 25 Pa. Code 89.142a(h) requires underground 
mining to be planned and conducted in a manner that maintains the value 
and reasonably foreseeable use of perennial streams and for adverse 
effects to be mitigated to the extent technologically and economically 
feasible, the Director is approving this portion of the amendment 
because it is no less effective than the requirements at 30 CFR 
Secs. 784.20(b)(5), 784.20(b)(8) and 817.121(c)(1).
    However, the Director is requiring both subsections (h)(1) and 
(h)(2) to be amended because of the use of the term ``underground 
mining.'' Please see the combined finding regarding use of the term 
``underground mining'' as opposed to ``underground mining operations'' 
at the end of the regulation section for more information.
    Section 89.142a(i). This section provides situations where the 
Department will suspend underground mining if the operations present an 
imminent danger to the public. Pennsylvania's regulations are no less 
stringent than Sec. 516(c) of SMCRA and 30 CFR 817.121(f) since they 
both require the suspension of underground mining under urbanized 
areas, cities, towns, and communities and adjacent to industrial or 
commercial buildings, major impoundments, or perennial streams. In 
addition, Pennsylvania extends the same protection to lined solid and 
hazardous waste disposal areas. However, the Director is requiring 
subsection (1) to be amended because of the use of the term 
``underground mining.'' Please see the combined finding regarding use 
of the term ``underground mining'' as opposed to ``underground mining 
operations'' at the end of the regulation section for more information.
    Section 89.142a(j). This section provides that underground mining 
is prohibited under an area that is not included within a subsidence 
control plan that has been submitted and approved by the Department. 
There is no direct corresponding federal regulation to this section. 
The Director is approving this portion of the amendment because it is 
not inconsistent with the federal regulations at 30 CFR 784.20 
requiring a subsidence control plan as part of the permit application.
    Section 89.142a(k). This section provides the steps operators must 
take when they receive a claim of subsidence damage to a structure or 
surface feature. There is no direct corresponding federal counterpart 
to this section. Since this section establishes procedures for 
operators to contact the regulatory authority and will insure that any 
complaints that are received by an operator will be forwarded to the 
regulatory authority in a timely manner, the Director finds that this 
section is not inconsistent with the requirements of SMCRA and the 
federal regulations. The Director is approving this portion of the 
amendment.
    Section 89.142a(l). This section prohibits the Department from 
adjudicating property rights disputes between mine operators and other 
parties. Section 507(b)(9) of SMCRA states in part that nothing in 
SMCRA ``shall be construed as vesting in the regulatory authority the 
jurisdiction to adjudicate property title disputes.'' The Director 
finds that this section is in accordance with SMCRA because it does not 
give PADEP the authority to adjudicate property rights. The Director is 
approving this section.
    Section 89.143(a). This section provided performance standards for 
operators to follow when conducting underground mining activities. This 
section has been deleted with provisions (a)(1), (2), and (4) moved, 
with some minor modifications, to 25 Pa. Code 89.142a(a)(1), (2), and 
(4) respectively. Section 89.143(a)(3) was modified and moved to 25 Pa. 
Code 89.142a(a)(3). Section 89.143(a)(3) stated that no underground 
mining activity will be authorized beneath structures where the depth 
of overburden is less than 100 feet, with the exception of mine-related 
openings to the surface such as entries, shafts and boreholes and site 
specific variances for entry development as approved by the Department. 
In moving this section, Pennsylvania kept the prohibition of mining 
beneath structures where the overburden is less than 100 feet, but 
deleted the exceptions and replaced them with the phrase ``unless the 
subsidence control plan demonstrates to the Department's satisfaction 
that the mine workings will be stable and that overlying structures 
will not suffer irreparable damage.'' The Director is approving the 
deletion of 25 Pa. Code 89.143 because the requirements of subsections 
(a)(1), (2), and (4) remain as part of the Pennsylvania program and the 
modification of subsection (a)(3) as found in 25 Pa. Code 89.142a(a)(3) 
has been approved. However, the Director is requiring Pennsylvania to 
amend its program at 25 Pa. Code 89.142a(a) to take into account 
underground mining operations when describing performance standards for 
operators to follow.
    Section 89.143(b)(1). This section has been deleted with its 
provisions modified and moved to 25 Pa. Code 89.142a(c)(1). Section 
89.143(b)(1) required underground mining activities to be planned and 
conducted in a manner that prevents subsidence damage to: (i) public 
buildings and noncommercial structures customarily used by the public, 
including churches, schools and hospitals, (ii) dwellings, cemeteries, 
municipal public service

[[Page 67040]]

operations and municipal utilities in place on April 27, 1966, (iii) 
impoundments and other bodies of water with a storage capacity of 20 
acre feet or more, (iv) aquifers, perennial streams and bodies of water 
which serve as a significant source for a public water supply system as 
defined in the Pennsylvania Safe Drinking Water Act (35 P.S. section 
721.1-721.17), and (v) coal refuse disposal areas authorized by permits 
issued under Chapter 90 (relating to coal refuse disposal).
    The section as it was modified and moved to 25 Pa. Code 
89.142a(c)(1) now reads, ``Unless the subsidence control plan 
demonstrates that subsidence will not cause material damage to, or 
reduce the reasonably foreseeable use of the structures and surface 
features listed in subparagraphs (i)-(v), no underground mining shall 
be conducted beneath or adjacent to: (i) Public buildings and 
facilities, (ii) Churches, schools and hospitals, (iii) Impoundments 
with a storage capacity of 20 acre-feet (2.47 hectare-meters) or more, 
(iv) Bodies of water with a volume of 20 acre-feet (2.47 hectare-
meters) or more, and (v) Bodies of water or aquifers which serve as 
significant sources to public water supply systems.'' The Director is 
approving the deletion of 25 Pa Code 89.143(b)(1) because it provided 
more comprehensive protections than the federal regulations.
    Section 89.143(b)(2). This section was deleted in its entirety. 
Prior to deletion, this section listed the damages prohibited by this 
subsection, including the cracking of walls, foundations, and 
monuments, the draining of aquifers, perennial streams or other bodies 
of water that serve as a significant source for a public water supply 
system and the weakening of impoundments and embankments. The section 
further noted that damage to structures described in paragraph (1)(i) 
need not be prevented if done with the consent of the current owner. 
The Director is approving this deletion because under federal rules, 
such damages may be allowed to occur if the operator promptly repairs 
or compensates the landowners for the damages or promptly provides 
alternate water supplies. Deletion of this section will not make the 
Pennsylvania program less effective than the federal regulations.
    Section 89.143(b)(3). This section has been deleted with several of 
its provisions moved to 25 Pa. Code 89.142a(c)(2). The provisions that 
were moved, with some minor modifications, were: 25 Pa. Code 
89.143(b)(3)(i) (A) through (C). The remaining provisions that were 
deleted were 25 Pa. Code 89.143(b)(3)(i)(D) and (ii)(A) through (D). 
Section 89.143(b)(3)(i)(D) provided that more stringent measures may be 
imposed or mining may be prohibited if the measures fail to prevent 
subsidence damage. Section (ii) allowed full extraction techniques 
where the operator demonstrates that the proposed measures are at least 
as effective in prevention of subsidence damage as those described in 
this subsection.
    The Director is approving the deletion of this section because 25 
Pa. Code 89.143(b)(3)(i)(A) through (C) still remain in the approved 
program and 25 Pa. Code 89.143(b)(3)(i)(D) and (ii)(A) through (D) 
provided protections beyond that contemplated by the federal 
regulations. The deletion of 25 Pa. Code 89.143(b)(3) will not make the 
Pennsylvania program less effective than the federal regulations.
    Section 89.143(c)(1). This section has been deleted and the 
provisions moved to section 25 Pa. Code 89.142a(g)(1). The section 
discussed protection of utilities and requires underground mining 
activities to be planned and conducted in a manner that minimizes 
damage, destruction or disruption in services provided by utilities. 
When the section was moved to 25 Pa. Code 89.142a(g), Pennsylvania 
dropped the word ``activities'' from the phrase ``underground mining 
activities.'' The Director is approving the deletion of 25 Pa. Code 
89.143(c)(1), but is requiring Pennsylvania to amend its program at 25 
Pa. Code 89.142a(g)(1) to insure that underground mining activities are 
planned and conducted in a manner that minimizes damage, destruction or 
disruption in services provided by utilities. See the Director's 
decision under 25 Pa. Code 89.142a(g)(1) for further information.
    Section 89.143(c)(2). This section was deleted and the provisions 
moved with some modifications to 25 Pa. Code 89.142a(g)(2). The section 
originally indicated that the measures adopted to minimize damage, 
destruction or disruption of utility services protected by this 
subsection may include, in addition to those measures discussed in 25 
Pa. Code 89.141(d), a program for detecting subsidence damage and 
avoiding disruption in services, and a notification to the owner of the 
facility that specifies when the mining activity beneath or adjacent to 
the structure will occur. When Pennsylvania moved the section it 
changed the phrase ``avoiding disruption in services'' to ``minimizing 
disruption in services'' (see 25 Pa. Code 89.142a(g)(2)(i)). The 
federal rules at 30 CFR 817.180 require underground mining activities 
to be conducted in a manner that minimizes damage, destruction, or 
disruption of services provided by utilities. Therefore, the Director 
is approving deletion of this section because the provisions appear in 
25 Pa. Code 89.142a(g)(2)(i) and (ii) and therefore deleting this 
section will not make the Pennsylvania program less effective than the 
federal regulations.
    Section 89.143(d)(1). This section was deleted and the provisions 
moved to 25 Pa. Code 89.142a(h)(1). The provision required, prior to 
deletion, underground mining activities to be planned and conducted in 
a manner that maintains the value and reasonably foreseeable uses of 
perennial streams, such as aquatic life, water supply and recreation, 
as they existed prior to mining beneath streams. The provision at 25 
Pa. Code 89.142a(h)(1) deleted the word ``activities'' and changed 
``mining beneath streams'' to ``coal extraction beneath streams.'' The 
Director has approved the deletion of 25 Pa. Code 89.143(d)(1), but is 
requiring 25 Pa. Code 89.142a(h)(1) to be amended to be as effective as 
section 720 of SMCRA regarding underground mining operations.
    Section 89.143(d)(2). This section was deleted in its entirety. The 
section, which dealt with perennial streams, read, ``The measures to be 
adopted to comply with this subsection shall be described in the 
application and include a discussion of the effectiveness of the 
proposed measures as related to prior mining activities under similar 
conditions.'' There is no federal counterpart to this section. The 
Director finds that deleting this section will not make the 
Pennsylvania program less effective than the federal regulations.
    Section 89.143(d)(3). This section was deleted and the provisions 
moved, with some modifications, to 25 Pa. Code 89.142a(h)(2). The 
provision originally read, ``If the Department finds that the measures 
have adversely affected a perennial stream, the operator shall meet the 
requirements of 25 Pa. Code 89.145(a) (relating to surface owner 
protection) and file revised plans or other data to demonstrate that 
future activities will meet the requirements of paragraph (1).'' As 
found in 25 Pa. Code 89.142a(h)(2), the section now reads, ``If the 
Department finds that the underground mining has adversely affected a 
perennial stream, the operator shall mitigate the adverse effects to 
the extent technologically and economically feasible, and, if 
necessary, file revised plans or other data to demonstrate that future 
underground mining will meet the requirements of paragraph (1).'' The 
Director is approving the deletion of 25 Pa. Code 89.143(d)(3), but is 
requiring 25 Pa. Code 89.142a(h)(2) to be amended to require operators 
to mitigate

[[Page 67041]]

the adverse effects of underground mining operations on perennial 
streams.
    Section 89.143(e). This section requires underground mining 
activities to be planned and conducted in a manner that maintains the 
value and reasonably foreseeable use of the overlying surface land 
prior to mining. This section has been deleted. Pennsylvania has 
incorporated this provision in the amendment at 25 Pa. Code 
89.141(d)(8), which requires the subsidence control plan to contain a 
description of the measures to be taken to maintain the value and 
reasonably foreseeable use of the surface land and at 25 Pa. Code 
89.142a(e), which requires correction of material damage to surface 
lands to the extent technologically and economically feasible. The 
Director is approving deletion of this section because similar 
provisions that are as effective as the federal regulations in 
maintaining the value and foreseeable use of surface lands are found 
elsewhere in the Pennsylvania program.
    Section 89.143(f). This section has been deleted and the provisions 
moved, with some modification, to 25 Pa. Code 89.142a(i)(1). Prior to 
deletion, this section was titled ``Urbanized areas'' and indicated 
that underground mining activities shall be suspended beneath urbanized 
areas, cities, towns and communities, and adjacent to or beneath 
industrial or commercial buildings, solid and hazardous waste disposal 
areas, major impoundments or perennial streams, if the activities 
presented an imminent danger to the inhabitants of the urbanized areas, 
cities, towns or communities. Section 89.142a(i)(1) now states the 
Department will suspend underground mining beneath urbanized areas, 
cities, towns and communities and adjacent to or beneath industrial or 
commercial buildings, lined solid and hazardous waste disposal areas, 
major impoundments of 20 acre-feet (2.46 hectare-meters) or more, or 
perennial streams, if the operations present an imminent danger to the 
public. The Director finds that Pennsylvania's deletion of 25 Pa. Code 
89.143(f) and moving of its provisions to 25 Pa. Code 89.142a(i)(1) did 
not make this section less effective than the provisions of SMCRA at 
section 516(c) and is approving the deletion. However, the Director is 
requiring 25 Pa. Code 89.142a(i)(1) to be amended to provide for the 
suspension of underground mining operations as per the requirements of 
30 CFR 817.121(f).
    Section 89.143(g). This section has been deleted and its provisions 
moved, with some modification, to 25 Pa. Code 89.142a(j). This section 
provides that underground mining activities are prohibited under an 
area that is not included within a subsidence control plan submitted 
under 25 Pa. Code 89.141(d) and that has been approved by the 
Department. In moving the provision, Pennsylvania deleted the word 
``activities'' from the phrase ``underground mining activities.'' The 
Director finds that deletion of this section does not make the 
Pennsylvania program any less effective than the federal program 
because the provisions of the deleted section are found elsewhere in 
the Pennsylvania program (see the Director's finding at 25 Pa. Code 
89.142a(j)).
    Section 89.143a(a). This provision requires structure owners with 
subsidence damage to notify operators of the damage. This provision is 
similar to section 5.5(a) (52 P.S. 1406.5e(a)) of the BMSLCA. The 
Director is approving this provision for the same reasons as noted in 
regard to section 5.5(a) (52 P.S. 1406.5e(a)) of the statute found 
earlier in this rulemaking.
    However the Director is requiring this section to be amended 
because of the term ``underground mining.'' Please see the combined 
finding regarding use of the term ``underground mining'' as opposed to 
``underground mining operations'' at the end of the regulation section 
for more information.
    Section 89.143a(b). This subsection provides that if the operator 
agrees that mine subsidence damaged the structure, the operator shall 
fully repair the damage or compensate the owner for the damage under 
either 25 Pa. Code 89.142a(f) or under a voluntary agreement authorized 
by section 5.6 (52 P. S. 1406.5f) of the BMSLCA. Since this subsection 
requires full repair or compensation and merely cross references to 
other statutory or regulatory provisions, the Director finds this 
section no less effective than the federal regulations at 30 CFR 
817.121, which require repair or compensation of material damage to 
structures.
    Section 89.143a(c). This section provides that if, within six 
months of the date that the building owner sent the operator 
notification of subsidence damage, the parties are unable to agree as 
to the cause of the damage or the reasonable cost of repair or 
compensation for the structure, the owner may, within two years of the 
date damage to the structure occurred, file a claim in writing with the 
Department.
    This section is substantively identical to section 5.5(b) (52 P.S. 
1406.5e(b)) of the BMSLCA. Both the statute and the regulation provide 
that a landowner must wait for six months after notifying an operator 
of subsidence damage before filing a claim with the Department. Section 
5.5(b) (52 P.S. 1406.5e(b)) and the proposed regulation further 
restricts the period of time for a landowner to file a complaint by 
requiring complaints to be filed within two years of the date damage 
occurred to a structure. The Director has not approved the portion of 
section 5.5(b) (52 P.S. 1406.5e(b)) of the statute that states `` * * * 
within six months of the date of the notice.'' The reasons for not 
approving that language can be found under section 5.5(b) (52 P.S. 
1406.5e(b)) earlier in this rulemaking. The Director is not approving 
the portion of the 25 Pa. Code 89.143a(c) that states, ``* * * within 6 
months of the date that the building owner sent the operator 
notification of subsidence damage to the structure * * *'' for the same 
reasons as noted for section 5.5(b) (52 P.S. 1406.5e(b)) of the 
statute.
    Additionally, the Director has not approved the portion of section 
5.5(b) (52 P.S. 1406.5e(b)) of the BMSLCA requiring complaints to be 
filed within two years of the date damage has occurred to a structure. 
The Director is not approving the phrase ``within 2 years of the date 
damage to the structure occurred * * *'' in 25 Pa Code 89.143a(c) for 
the same reasons as found in section 5.5(b) (52 P.S. 1406.5e(b)) of the 
statute.
    Section 89.143a(d). This section describes the procedures the 
Department will follow in conducting an investigation into a subsidence 
damage claim. This regulation is similar to section 5.5(c) (52 P.S. 
1406.5e(c)) of the BMSLCA. Both the statute and the regulation require 
the Department to conduct an investigation within 30 days of receipt 
the claim and within 60 days of completion of the investigation provide 
a written response. Additionally, both the statute and regulation 
provide that, if the Department finds that the operator's underground 
mining caused the damage, the Department will either issue a written 
order directing the operator to compensate the structure owner or issue 
an order directing the operator to repair the damage structure within 
six months of the date of issuance of the order. More than six months 
may be allowed if the Department finds that further damage may occur to 
the same structure as a result of additional subsidence.
    The Director approved the portions of section 5.5(c) (52 P.S. 
1406.5e(c)) dealing with the time limitations of PADEP's inspection 
responsibilities. The approval was made to the extent that Pennsylvania 
recognizes that existing provisions of the Pennsylvania

[[Page 67042]]

program regarding responses to citizen complainants could require 
Pennsylvania to respond to a citizen more quickly than the 60 days 
allowed in this section. Therefore, the Director is approving 25 Pa. 
Code 89.143a(d)(1) and (2) to the same extent.
    The Director did not approve the provision in 5.5(c) (52 P.S. 
1406.5e(c)) of the BMSLCA that allowed written orders with abatement 
periods of six months or longer to complete repairs or compensate 
landowners for damages. For the same reasons, the Director is not 
approving the portion of 25 Pa. Code 89.143a(d)(3) that states, `` * * 
* within 6 months of the date of issuance of the order. The Department 
may allow more than 6 months if the Department finds that further 
damage may occur to the same structure as a result of additional 
subsidence.''
    Finally, the Director is requiring subsections (d)(1) through (3) 
to be amended because of the use of the term ``underground mining.'' 
Please see the combined finding regarding use of the term ``underground 
mining'' as opposed to ``underground mining operations'' at the end of 
the regulation section for more information.
    Section 89.144. This section lists the requirements to notify the 
landowners of impending underground mining beneath their property. The 
section was deleted and its provisions moved, with some minor 
modifications, to 25 Pa. Code 89.155. Because all of the provisions of 
25 Pa. Code 89.144 were moved to 25 Pa. Code 89.155, and those 
provisions were found to be as effective as the federal regulations 
regarding public notice at 30 CFR 817.122, the Director is approving 
the deletion of 25 Pa. Code 89.144.
    Section 89.144a(a)(1). This provision provides that the operator 
will not be required to repair a structure or compensate a structure 
owner for damage to structures if the operator demonstrates that the 
landowner denied the operator access to the property upon which the 
structure is located to conduct a premining survey or postmining survey 
of the structure and surrounding property. This provision is similar to 
section 5.4(c) (52 P.S. 1406.5d(c)) of the BMSLCA. The Director is not 
approving this portion of the amendment for the same reasons as given 
for not approving section 5.4(c) (52 P.S. 1406.5d(c)) of the BMSLCA, as 
noted earlier in this rulemaking.
    Section 89.144a(a)(2). This provision provides that an operator can 
be granted relief from responsibility to repair a structure or 
compensate a structure owner for damage to a structure if the 
operator's underground mining did not cause the damage. The Director is 
approving this portion of the amendment. There is nothing in the 
federal regulations requiring operators to compensate owners or repair 
damage that was not caused by the operator's underground mining 
activities. Therefore, this provision is not inconsistent with the 
requirements of SMCRA and the federal regulations.
    Section 89.144a(a)(3). This provision provides that an operator can 
be granted relief from responsibility to repair a structure or 
compensate a structure owner for damage to a structure if the operator 
and the landowner entered into a voluntary agreement that satisfies the 
requirements of section 5.6 (52 P.S. 1406.5f) of the BMSLCA. Section 
5.6(a) (52 P.S. 1406.5f(a)) requires agreements to provide for 
``remedies [that] shall be no less than those necessary to compensate 
the owner of a building for the reasonable cost of its repair * * * .'' 
The Director has approved section 5.6(a) (52 P.S. 1406.5f(a)) of the 
BMSLCA and is approving 25 Pa. Code 89.144a(a)(3) of the regulations 
because it is consistent with the federal rules at 30 CFR 817.121, 
which require permittees to repair damage to structures or compensate 
the owner.
    Section 89.145(a). This section was deleted in its entirety. This 
section required operators to correct material damage resulting from 
subsidence to surface lands, including perennial streams, to the extent 
technologically and economically feasible, by restoring the land to a 
condition capable of maintaining the value and reasonably foreseeable 
uses that it was capable of supporting before subsidence. 
Pennsylvania's program amendment provides for repair of damage to 
surface lands at 25 Pa. Code 89.142a(e). Please see the discussions of 
25 Pa. Code sections 89.142a(e), 89.142a(h), and 89.141(d)(3) for 
findings on how those sections are no less effective than the federal 
regulations that require operators to correct material damage to 
surface lands (including streams) by restoration of the land to a 
condition capable of maintaining the value and reasonably foreseeable 
uses that it was capable of supporting before subsidence. The Director 
is approving the deletion of 25 Pa. Code 89.145(a) because the 
provisions of that section are covered by 25 Pa. Code section 
89.142a(e) and 89.142a(h).
    Section 89.145(b). This section was deleted in its entirety. The 
section required operators to report claims of subsidence damage to 
PADEP within 10 days of notification. There is no comparable federal 
standard requiring operators to notify the regulatory authority of 
subsidence damage claims. Both the BMSLCA at section 5.5 (52 P.S. 
1406.5e) and the implementing regulations at 25 Pa. Code 89.143a 
describe procedures for reporting subsidence damage claims to PADEP. 
For the Director's findings on reporting, please see the discussions of 
those sections. Because there is no federal counterpart to 25 Pa. Code 
89.145(b), the Director finds that Pennsylvania's deletion of this 
section does not impair the effectiveness of its program. The deletion 
is approved.
    Section 89.145a(a)(1). This subsection requires operators to 
conduct premining water surveys prior to mining within 1000 feet of a 
water supply. In our letter of June 21, 1999, to Pennsylvania we stated 
that this section contemplates that the premining water survey would be 
done after the permit is approved while the federal rule at 30 CFR 
784.20(a)(3) requires the completion of the survey prior to permit 
approval. In addition, OSM's February 9, 1998, policy memorandum 
provides that:

    State program amendments that would delay the timing of the 
water supply surveys required under 30 CFR 784.20(a)(3) should not 
be approved.

    In the June 21, 1999, letter we also noted that 25 Pa. Code 
89.145a(a)(1) provides that survey information is to be submitted only 
to the ``extent that it can be collected without extraordinary efforts 
or the expenditure of excessive sums of money'' and that the federal 
rules do not allow for waiving survey information. Finally, we asked 
Pennsylvania to clarify whether the information required in subsections 
25 Pa. Code 89.145a(a)(1)(i) through (vi) will give sufficient 
information to determine the premining water quality and quantity. As 
stated in the federal rules, ``the survey should incorporate the 
baseline water quality and quantity information on existing water 
supplies required under existing rules at 30 CFR 784.14 and 784.22.'' 
60 FR at 16730 (2d col).
    Pennsylvania's response of June 1, 2000, noted that its regulations 
do not waive the requirement to conduct premining surveys and that, as 
required by 25 Pa. Code 89.145a(a), all water supplies that may be 
adversely affected by mining must be surveyed by the mine operator. 
Pennsylvania advised that the only exception is where the property 
owner will not allow the mine operator access to conduct the survey and 
that, fundamentally, there is no difference between the federal and 
state's regulations in terms of ensuring the availability of baseline 
data against which to measure effects.

[[Page 67043]]

    Pennsylvania further noted that the survey requirements of 25 Pa. 
Code 89.145a(a) are designed around Pennsylvania's water supply 
replacement requirements, which are more inclusive than federal 
counterpart requirements, and as a result, Pennsylvania's program must 
include provisions for surveying water supplies that are installed 
after the time of permit application. Finally, Pennsylvania advised 
that its program does not postpone the submission of all water supply 
information until mining operations have begun. Information relating to 
the quality and quantity of water supplies is presented at the time of 
permit application in accordance with the requirements of 25 Pa. Code 
89.34(a)(1) relating to groundwater information.
    The Director addressed this situation in a memorandum to the 
Regional Directors dated February 9, 1998, titled ``Timing of 
Presubsidence Surveys,'' and in March 1999 letters to the Interstate 
Mining Compact Commission and Tri-State Citizens Mining Network (the 
``March 1999 letters''). Guidance from the Director provides that 
baseline data collected at the time of permit application must be 
sufficient to develop the Probable Hydrologic Consequences and 
Cumulative Hydrologic Investigation Assessment documents and that 
states may use the regulatory program amendment process to identify 
what additional information required under 30 CFR 784.20(a)(3) must be 
submitted at the time of permit application and which, if any, could be 
collected at a time closer to when mining would actually occur. The 
Director committed to giving serious consideration to approving state 
program amendments that identify what water supply information required 
under 30 CFR 784.20(a) must be submitted at the time of permit 
application and which, if any, could be collected at a time closer to 
when mining actually occurs. Finally, the Director required that states 
must demonstrate, through the regulatory program amendment process for 
any delayed water supply surveys, that those analyses would be 
completed sufficiently in advance of mining to avoid any adverse effect 
to the water supply.
    OSM considered Pennsylvania's proposed amendment relative to 
current program requirements for baseline hydrologic surveys, 
information in the Pennsylvania Bulletin (28 Pa.B. 2761), and responses 
to OSM requests for clarification relative to the March 1999 letters. 
Specifically at issue is whether OSM can approve the Pennsylvania 
requirement that operators conduct premining water surveys after the 
permit application is approved and prior to mining within 1000 feet of 
a water supply. The federal rule at 30 CFR 784.20(a)(3) requires a 
survey at the time of the permit application of each and every 
protected water supply, i.e. a survey of individual wells, springs, 
etc. Pennsylvania advised OSM that its amendment proposal does not 
postpone the submission of all water supply information until after the 
permit is approved (see the Director's finding at 25 Pa. Code 
89.34(a)(1)). The Director notes that the approved Pennsylvania program 
at 25 Pa. Code 89.43(a)(1) contains requirements for permittees to 
collect baseline hydrology information in a manner no less effective 
than the federal requirements at 30 CFR 784.14(b)(1). The federal rules 
at 30 CFR 784.14 require sampling of ground water information at the 
time of the permit application, but there is the option to use modeling 
to meet the requirements for hydrologic prediction. Modeling means that 
not every water supply will be sampled. Pennsylvania's existing program 
also allows for modeling. This introduces uncertainty into predicting 
the type and extent of information that will be collected on each water 
supply at the time of the permit application. Additionally, the 
preamble to the Pennsylvania Bulletin stated that 25 Pa. Code 
89.145a(a)(1) provides for Department technical staff to adjust the 
survey distance (1,000 foot limitation) based on site-specific 
conditions. Accordingly, it is not clear what parameters Pennsylvania 
would require to be collected on each individual supply as part of a 
permit application, and which, if any, would be subject to a delayed 
survey after permit approval.
    Based upon the language contained in the Pennsylvania amendment, 
Pennsylvania's responses to OSM's comments, Pennsylvania's existing 
program and the Pennsylvania Bulletin, the Director is not approving 
the provision that allows for water supply surveys to be delayed until 
mining advances within 1,000 feet of a supply. Such information must be 
submitted by the permittee with the application. The Director is 
requiring Pennsylvania to amend its program to require permittees to 
submit the information required by 25 Pa. Code 89.145a(a)(1)(i)-(vi) 
that is necessary to meet the provisions of 30 CFR 784.20(a)(3) at the 
time of the application for all existing drinking, domestic, or 
residential water supplies. As part of that amendment, Pennsylvania may 
submit the information requested in the March 1999 letters to identify 
what water supply information must be submitted at the time of permit 
application and which, if any, could be collected at a time closer to 
when mining actually occurs. Along with any such request, Pennsylvania 
must demonstrate for any delayed water supply surveys, that those 
analyses would be completed sufficiently in advance of mining to avoid 
any adverse effect to the water supply.
    Pennsylvania further noted that the proviso that survey information 
need only be acquired to the extent that it can be collected without 
extraordinary efforts or expenditures of excessive sums of money is a 
matter of both practicality and preventing inconvenience to property 
owners. PADEP noted that this proviso was based on its experience and 
pertains especially to situations where rigid requirements to obtain 
quantity information would result in tearing apart a well or digging up 
the floor of a structure to gain access for measurements. Although the 
federal regulations do not include a similar proviso, PADEP does not 
believe that OSM would apply them without exercising similar 
discretion.
    The Director is requiring 25 Pa. Code 89.145a(a)(1) to be amended 
to include the provision that survey information need only be acquired 
to the extent that it can be collected without extraordinary efforts or 
expenditures of excessive sums of money is only applicable when it 
applies to inconveniencing landowners. The federal regulations require 
the water supply information to be collected without regard to the cost 
and effort applied by operators. This provision makes this portion of 
the Pennsylvania program less effective than the federal program, which 
does not include limits on efforts, or expense, operators are subjected 
to in the course of gathering premining survey information.
    Section 89.145a(a)(1)(i)-(vi). These six subsections list 
information operators are required to include in the premining survey 
and, if one is desired, the postmining survey of all water supplies 
within the permit and adjacent areas. The Director finds these 
subsections no less effective than the federal rules and is approving 
the six subsections for the reasons noted below (please also see our 
finding concerning 25 Pa. Code 89.145a(a)(1)).
    The requirement at subsection (i) for the location and type of 
water supply is consistent with the federal regulations at 30 CFR 
784.20(a)(1) requiring the subsidence control map to show the location 
and type of drinking, domestic,

[[Page 67044]]

and residential water supplies that could be contaminated, diminished, 
or interrupted by subsidence. The Director is approving this section 
because it is substantially the same as the requirements found at 30 
CFR 784.20(a)(1).
    Subsection (ii) requires the water supply surveys to include the 
existing and reasonably foreseeable uses of the water supply. There is 
no similar provision in the federal regulations. The Director is 
approving this provision because requiring the operator to gather more 
information than is required in the federal regulations does not lessen 
the protections afforded by the federal regulations. Additionally, this 
information is essential for implementing the provisions of 25 Pa. Code 
89.145a(b) and 89.145a(f).
    Subsections (iii) and (iv) provide that the surveys include the 
chemical and physical characteristics of the water and that a certified 
laboratory must be used to analyze the samples and the quantity of 
water. These sections require substantially the same information as is 
required in the federal regulations at 30 CFR 780.21(b)(1). The 
Director is approving this portion of the amendment because it is 
consistent with the federal regulations. Subsection (v) requires the 
survey to include the physical description of the water supply and 
subsection (vi) requires the survey to include hydrogeologic data such 
as the static water level and yield determination. The Director is 
approving subsections (v) and (vi) because they require information 
similar to the ground water information required by the federal 
regulations at 30 CFR 780.21(b)(1).
    Section 89.145a(a)(2). This provision requires an operator to 
submit copies of the results of analyses (described under 25 Pa. Code 
89.145a(a)(1)) as well as the results of any quantitative analysis to 
the Department and the landowner within 30 days of their receipt by the 
operator. Since the federal regulation at 30 CFR 784.20(a)(3) requires 
the permit applicant to provide copies of any assessment or evaluation 
to the property owner and the state regulatory authority, the Director 
finds that this provision is no less effective than 30 CFR 
784.20(a)(3).
    Section 89.145a(a)(3). This subsection combined with subsection 
(a)(1) provides that the operator does not have to conduct a premining 
and postmining survey if the landowner does not authorize access to the 
site within 10 days of the operator's intent to conduct a survey.
    In our letter of June 21, 1999, to Pennsylvania we noted that 
federal regulations place no notice requirement on the property owner. 
The 10-day requirement of Pennsylvania's regulations makes it appear to 
be less effective than the federal regulation because under EPAct, even 
though access may initially be denied, the property owner can later 
decide to allow a survey.
    In its response to us dated June 1, 2000, Pennsylvania noted that 
25 Pa. Code 89.145a(a)(3) is intended to alert PADEP to situations 
where property owners have denied mine operators access to conduct 
premining surveys. This allows PADEP to communicate with the property 
owners to further explain the importance of allowing premining surveys 
or the procedures to be followed in arranging their own surveys. 
Section 89.145a(a)(3) does not preclude property owners from changing 
their minds and subsequently authorizing operators to conduct surveys.
    The Director is approving this portion of the proposed amendment 
based on Pennsylvania's interpretation that there is nothing in the 
amendment precluding a landowner from requesting a water supply survey 
after initially denying the operator's access to the property. 
Therefore, it is no less effective than 30 CFR 784.20 since it does not 
prevent surveys.
    Section 89.145a(b). This provision requires operators to restore or 
replace affected water supplies with a permanent alternate source that 
adequately serves the premining uses of the water supply or any 
foreseeable uses of the water supply. This regulation implements 
section 5.1(a)(1) and 5.1(a)(2) (52 P.S. 1406.5a(a)(1) and (2)) of the 
BMSLCA. The Director is approving Pennsylvania's standard regarding the 
quality of restored or replaced water supplies and is conditionally 
approving its standard regarding the quantity of restored or replaced 
water supplies. Please see the discussion at section 5.1(a)(1) and 
5.1(a)(2) (52 P.S. 1406.5a(a)(1) and (2)) for more information.
    However, this section is less effective than 30 CFR 817.41(j), 
which requires permittees to promptly replace drinking, domestic or 
residential water supplies. Section 89.145a(b) does not contain any 
standard requiring operators to show a diligent and timely effort in 
replacing water supplies. For further information on the standard 
requiring prompt replacing of water supplies, see the Director's 
decision on section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) of the BMSLCA. 
The Director is requiring 25 Pa. Code 89.145a(b) to be amended to be no 
less effective than 30 CFR 817.41(j) in requiring prompt replacement of 
water supplies.
    Section 89.145a(c). This section provides that within 24 hours of 
an operator's receipt of a claim of water supply contamination, 
diminution or interruption, the operator shall notify the Department of 
the claim. There is no corresponding federal counterpart to this 
section. Since this establishes procedures for operators to contact the 
regulatory authority and will insure that any complaints that are 
received by an operator will be forwarded to the regulatory authority 
in a timely manner, the Director finds that this section is not 
inconsistent with the requirements of SMCRA and the federal 
regulations.
    Section 89.145a(d). This section provides that upon receipt of a 
complaint that a water supply has been contaminated, diminished or 
interrupted, operators must diligently investigate the complaint and 
notify the Department in a timely manner of the results of its 
investigation. There is no direct federal counterpart. Since this 
establishes procedures for investigations by operators, the Director 
finds that this section is not inconsistent with the requirements of 
SMCRA and the federal regulations.
    Section 89.145a(e)(1). This section provides that if an affected 
water supply is within the rebuttable presumption area and the 
presumption applies, the operator will provide a temporary water supply 
within 24 hours. We noted in our letter to Pennsylvania of June 21, 
1999, that the proposed amendment only requires the temporary 
replacement of water supplies if three conditions are met: (1) If the 
water supply is within the rebuttable presumption area, (2) the 
presumption applies and, (3) if ``the landowner or water user is 
without a readily available alternate source.'' The federal rules 
require the permittee to replace the supply that has been interrupted, 
etc., regardless of whether there is an available alternate source and 
where there is no rebuttable presumption. The federal rules do not have 
a rebuttable presumption standard for water supplies.
    In its response of June 1, 2000, Pennsylvania noted that its 
program

* * * does provide for the provision of temporary water irrespective 
of whether the affected water supply lies inside or outside of the 
rebuttable presumption area. The BMSLCA requires the provision of 
temporary water within 24 hours if the water supply lies within the 
rebuttable presumption area. This requirement is reflected in 
section 89.145a(e). If the affected water supply lies outside the 
rebuttable presumption area, the responsibility to provide temporary 
water is

[[Page 67045]]

driven directly by section 5.2 of BMSLCA. Procedurally, in cases 
where a water supply has been affected outside the rebuttable 
presumption area, the law requires DEP to issue an order before an 
operator is obligated to provide temporary water. For this reason, 
the responsibility to provide temporary water in cases where the 
affected water supply lies outside the rebuttable presumption area 
is not stated in regulation. The requirements of section 89.145a(e) 
and the provisions of section 5.2 of BMSLCA act together to ensure 
the provision of temporary water in cases where water supply impacts 
occur inside and outside of the rebuttable presumption area. It is 
further notable that throughout its first five years in enforcing 
the water supply replacement requirements of BMSLCA, DEP has never 
had to issue an order to compel the provision of temporary water in 
any case where the affected water supply was outside the rebuttable 
presumption area.
    In regard to the rebuttable presumption of causation, there is 
no way in which this provision can be interpreted or construed to 
render Pennsylvania's program any less effective than the federal 
program. The rebuttable presumption amounts to nothing more than 
shifting the burden of proof onto the mine operator.

    This section is substantively identical to 5.2(a)(2) (52 P.S. 
1406.5b(a)(2)) of BMSLCA. Accordingly, the finding for 5.2(a)(2) (52 
P.S. 1406.5b(a)(2)) is incorporated herein by reference and the 
Director is approving this portion of the regulations to the extent the 
statutory section was approved and is requiring Pennsylvania to submit 
an amendment requiring the prompt supply of temporary water to all 
landowners whose water supply has been impacted by underground mining 
activities.
    Section 89.145a(e)(2). This subsection provides that the temporary 
water supply shall meet the requirements of paragraph (f)(2) and 
provide a sufficient amount of water to meet the water supply user's 
premining needs. In our letter of June 21, 1999, to Pennsylvania we 
noted that the federal definition for ``replacement of water supply'' 
at 30 CFR 701.5 provides for a ``* * * water supply on both a temporary 
and permanent basis equivalent to premining quantity and quality.'' We 
noted that this section appears to be less effective than the federal 
rules, in that it provides for temporary water based on users' needs 
rather than the premining quality.
    In its response of June 1, 2000, Pennsylvania noted that under its 
program, a temporary water supply is just that, temporary. It is 
intended to satisfy the water users' needs so that they can carry out 
their daily activities with minimal disruption. By contrast, a 
permanent water supply must be adequate to serve not only the water 
user's premining needs but also any reasonably foreseeable uses of the 
original water supply.
    Finally Pennsylvania also notes the federal terms ``drinking, 
domestic or residential water supply'' and ``replacement of water 
supply'' are defined to include water delivery systems (i.e., the pumps 
and piping that deliver water to the point of use). As a general 
observation, these systems are usually designed based on the existing 
uses of the water supplies. Pennsylvania believes this factor serves to 
further align its replacement requirements with those of the federal 
regulations.
    The federal definition of the term ``replacement of water supply'' 
at 30 CFR 701.5 requires the provision of both permanent and temporary 
water supplies that are the equivalent to the premining quantity and 
quality. In 25 Pa. Code 89.145a(e)(2), Pennsylvania has indicated that 
temporary water supplies will be restored to the same quality levels as 
permanent supplies by requiring that temporary water supplies meet the 
quality requirements of 25 Pa. Code 89.145a(f)(2). However, 
Pennsylvania has not required temporary water supplies to meet the same 
quantity requirements of permanent supplies as defined in 25 Pa. Code 
89.145a(f)(3)(i) and (ii), i.e., the amount of water necessary to meet 
the water user's needs and any reasonably foreseeable uses. Instead, 
Pennsylvania only requires temporary water supplies to provide a 
sufficient amount of water necessary to meet the water supply user's 
premining needs. The Director has conditionally approved 25 Pa. Code 
89.145a(f)(3)(i) and (ii), as being as effective as the federal 
regulations regarding quantity of replacement supplies. Therefore, the 
Director finds that to be consistent with the federal regulations, 25 
Pa. Code 89.145a(e)(2) should require the quantity of temporary water 
supplies to meet the requirements of 25 Pa. Code 89.145a(f)(3)(i) and 
(ii). Accordingly, the Director is requiring Pennsylvania to amend this 
section to insure that temporary water supplies are restored to the 
same levels as are required of permanent water supplies. Please see the 
discussion in section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) for more 
information on the Director's conditional approval regarding quantity 
of replacement water supplies.
    Section 89.145a(f)(1)(i)--(iv). This section requires that a 
permanently restored or replaced water supply shall include any well, 
spring, municipal water supply system or other supply approved by the 
Department that meets criteria listed in subsections (1)(i) through 
(iv). Section 89.145a(f)(1) talks about reliability, cost, maintenance 
and control. Subsection (i) requires the restored or replaced water 
supply to be as reliable as the previous water supply. Subsection (ii) 
requires the restored or replaced water supply to be as permanent as 
the previous water supply and subsection (iii) requires the supply to 
not require excessive maintenance. Subsection (iv) requires that the 
supply provide the owner and the user with as much control and 
accessibility as exercised over the previous water supply. The Director 
is approving 25 Pa. Code 89.145a(f)(1)(i) through (iv). There are no 
direct corresponding federal regulations to these sections. The 
Director finds that these sections are no less effective than the 
requirements found in the definition of the term ``replacement of water 
supply'' in the federal regulations at 30 CFR 701.5 because it helps 
return the water supply to its premining status.
    Section 89.145a(f)(1)(v). This subsection provides that a restored 
or replaced water supply must not result in more than a de minimis cost 
increase to operate and maintain. The operator must pay for increased 
operating and maintenance costs that exceed a de minimis cost increase. 
As noted earlier in this rulemaking (see our finding for 25 Pa. Code 
89.5, definition of ``de minimis cost increase''), the Director has not 
approved a ``de minimis cost increase.'' The Director does not believe 
that passing any increased costs to operate or maintain replacement 
water supply systems to landowners will fulfill the intent of the 
federal regulations to make the landowner whole. Accordingly the 
Director is not approving 25 Pa. Code 89.145a(f)(1)(v) to the extent 
that it passes de minimis cost increases to landowners.
    Section 89.145a(f)(2). This section provides that a restored or 
replaced water supply will be deemed adequate when it differs in 
quality from the premining water supply if it meets the standards of 
the Pennsylvania Safe Drinking Water Act or is comparable to the 
premining water supply when that water supply did not meet those 
standards. This regulation is comparable to section 5.1(a)(2) (52 P.S. 
1406.5a(a)(2)) of the BMSLCA. Please see our discussion regarding 
section 5.1(a)(2) (52 P.S. 1406.5a(a)(2)) for a discussion of the 
Director's approval regarding quality of replacement water supplies. 
The Director is approving this section for the same reasons.
    Section 89.145a(f)(3)(i). This subsection provides that a restored 
or replaced water supply will be deemed adequate in quantity if it 
delivers the

[[Page 67046]]

amount of water necessary to satisfy the water user's needs and the 
demands of any reasonably foreseeable uses. This section of the 
regulations implements section 5.1(a)(1) (52 P.S. 1406.5a(a)(1) of the 
BMSLCA. For a complete discussion of the Director's conditional 
approval of this section, please see the discussion of section 
5.1(a)(1) (52 P.S. 1406.5a(a)(1)). The Director's findings are 
incorporated herein and this section is approved to the extent that 
section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) is approved.
    Section 89.145a(f)(3)(ii). This subsection provides that a restored 
or replaced water supply will be adequate in quantity if it is 
established through a connection to a public water supply system that 
is capable of delivering the amount of water necessary to satisfy the 
water user's needs and the demands of any reasonable foreseeable uses.
    The Director is conditionally approving this portion of the 
amendment. For more information on the Director's conditional approval 
of this section, please see the discussion of section 5.1(a)(1) (52 
P.S. 1406.5a(a)(1)) of the BMSLCA under the statute section.
    Section 89.145a(f)(3)(iii). This subsection defines the term 
``reasonably foreseeable uses with respect to agricultural water 
supplies'' to include the reasonable expansion of use where the water 
supply available prior to mining exceeded the farmer's actual use.
    The Director is approving this portion of the amendment. For more 
information on the Director's approval of this section, please see the 
discussion of section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) of the BMSLCA 
under the statute section.
    Section 89.145a(f)(4). This section of the regulations provides 
that replacement of a water supply shall include the installation of 
any piping, pumping equipment and treatment equipment necessary to put 
the replaced water source into service. The Director is approving this 
portion of the regulations. This section is no less effective than the 
requirements found in definition of the term ``drinking, domestic, or 
residential water supply'' in the federal regulations at 30 CFR 701.5. 
This definition provides that the drinking, domestic, or residential 
water supply includes appurtenant delivery systems. This portion of 
Pennsylvania's regulations specifies the type of equipment that would 
be included in appurtenant delivery systems and therefore is consistent 
with the federal definition and is approved. For more information on 
standards for delivery systems, please see the Director's findings for 
section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) of the BMSLCA.
    Section 89.146a(a). This section provides the procedures to be used 
for landowners or water supply users to secure resolution of water 
supply damage claims. Subsection (a) requires landowners to notify mine 
operators when they experience contamination, diminution or 
interruption of a water supply. The requirement for landowners to 
contact operators is also found in section 5.2(a)(1) of the BMSLCA. The 
Director has approved that requirement for the reasons noted in the 
discussion of section 5.2(a)(1). The Director is approving 25 Pa. Code 
89.146a(a) for the same reasons.
    Section 89.146a(b). This section provides that the Department will 
order the operator to provide temporary water to the landowner or water 
supply user within 24 hours of issuance of the order if: (1) No 
alternate temporary water supply is available to the landowner or water 
user, (2) the water supply is contaminated, diminished or interrupted, 
(3) the water supply is located within the rebuttable presumption area 
and, (4) the owner notified the operator of the water supply problem. 
These requirements are similar to those found in section 5.2(a)(1) 
through (3) of the BMSLCA. The Director is approving 25 Pa. Code 
89.146a(b)(1) through (4). The requirement to provide temporary water 
within 24 hours is within guidelines proposed by OSM in the preamble to 
the federal regulations (60 FR 16727) and is consistent with the 
federal definition of ``replacement of water supply'' at 30 CFR 701.5, 
which requires replacement of protected water supplies on a temporary 
basis. It is also consistent with the enforcement procedures found in 
Part 843 of the federal regulations since a failure by the operator to 
replace the water supply as required under 25 Pa. Code 89.145a(e) is a 
violation of a performance standard.
    Section 89.146a(b)(1), which limits PADEP's ability to issue an 
order requiring operators to provide temporary water within 24 hours of 
issuance of an order if an alternate temporary source is available to 
landowners, is approved based on an explanation provided by 
Pennsylvania. In its June 1, 2000, response to our June 21, 1999, 
letter regarding the same subject covered in section 89.145a(e), 
Pennsylvania noted that, ``[PA]DEP does not interpret subsection (1) as 
imposing any responsibilities on property owners. If plumbing 
connections are required to establish a temporary water service, they 
must be provided by the mine operator. [T]he regulation simply provides 
that if an alternate source exists and the property owner can put it 
into service with no more than the flip of a switch or a turn of a 
valve, the mine operator may be relieved of the responsibility to do 
any thing more in the way of providing temporary water.'' Since the 
federal rules do not allow additional costs or burdens to be placed on 
the water user, the Director finds Pennsylvania's explanation 
consistent with the federal rules and as previously stated, finds this 
section is no less effective than the federal regulations in securing 
temporary water for landowners.
    Section 89.146a(b)(4) is similar to section 5.2(a)(1) of the 
BMSLCA, which also requires landowners to notify operators of water 
supply problems. The Director is approving 25 Pa. Code 89.146a(b)(4) 
for the same reasons as section 5.2(a)(1) was approved.
    Section 89.146a(c). Section 89.146a(c) provides that a landowner or 
water user may notify the Department and request an investigation if an 
alternate water supply has not been provided or if the alternate source 
is later discontinued. This section is similar to section 5.2(b)(1) of 
the BMSLCA. The Director has approved section 5.2(b)(1) and for the 
same reasons is approving 25 Pa. Code 89.146a(c).
    The procedures for securing an investigation are provided in 25 Pa. 
Code 89.146a(c) (1) through (3). These subsections are similar to 
section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) of the BMSLCA. The Director 
is approving section 5.2(b)(2) to the extent that Pennsylvania 
recognizes that the approved program may require a more timely response 
to complaints than that allowed by that section. The Director is 
approving 25 Pa. Code 89.146a(c)(1) through (3) to the same extent and 
with the same requirements as section 5.2(b)(2).
    Section 89.152(a)(1). This section provides the circumstances under 
which an operator may be relieved from liability from water supply 
replacement. Subsection (1) provides that an operator will not be 
required to restore or replace a water supply if the contamination, 
diminution or interruption existed prior to the underground mining 
activities and the mining activities did not worsen the preexisting 
condition. The Director is approving this portion of the amendment. The 
federal regulations at 817.41(j) do not require replacement of water 
supplies unless contamination, diminution or interruption due to mining 
activities has occurred, therefore, 25 Pa. Code 89.152(a)(1) is 
consistent with the federal rules.

[[Page 67047]]

    Section 89.152(a)(2). This section provides that the operator is 
not required to restore or replace a water supply if the operator can 
demonstrate that the contamination, diminution or interruption is due 
to underground mining activities that occurred more than three years 
prior to the onset of the water supply contamination, diminution or 
interruption. This subsection is similar to section 5.2(e)(2) of the 
BMSLCA. The Director did not approve 5.2(e)(2) because the statute of 
limitations provision virtually assures that at some point in time, 
there will be a water supply that will not be restored or replaced 
because the landowner did not report the contamination, diminution or 
interruption within the noted time frame. Further discussion on the 
Director's decision to not approve section 5.2(e)(2) of the BMSLCA can 
be found earlier in this rulemaking. The Director is not approving this 
section of the regulations for the same reasons.
    Section 89.152(a)(3). This section provides that the operator will 
not be required to restore or replace a water supply if the 
contamination, diminution or interruption occurred as the result of 
some cause other than the underground mining activities. This section 
of the regulations is similar to the provisions of section 5.2(e)(3) of 
the BMSLCA. The Director's approval of 5.2(e)(3) can be found earlier 
in this rulemaking. The Director is approving this section for the same 
reasons.
    Section 89.152(a)(4). This section provides that the operator will 
not be required to restore or replace a water supply if the claim for 
contamination, diminution or interruption of the water supply was made 
more than two years after the water supply was adversely affected by 
the underground mining activities. This section is similar to section 
5.1(b) of the BMSLCA. The Director has not approved section 5.1(b) for 
the reasons found in the discussion of that section earlier in this 
rulemaking. The Director is not approving 25 Pa. Code 89.152(a)(4) of 
the regulations for the same reasons.
    Section 89.152(a)(5)(i). This section provides that the operator 
will not be required to restore or replace a water supply if the 
operator has purchased the property for a sum equal to the property's 
fair market value immediately prior to the time the water supply was 
affected or has made a one-time payment equal to the difference between 
the property's fair market value prior to the time the water supply was 
affected and the fair market value determined at the time the payment 
is made. This section is similar to the provisions of section 5.2(g)(1) 
and (2) of the BMSLCA. The Director has not approved 5.2(g)(1) and (2) 
because the federal program does not provide for compensation in lieu 
of replacement or restoration of water supplies. A complete discussion 
of the reasons for not approving sections 5.2(g)(1) and (2) can be 
found earlier in this rulemaking. The Director is not approving 25 Pa. 
Code 89.152(a)(5)(i) of the regulations for the same reasons.
    Section 89.152(a)(5)(ii). This section provides that the operator 
will not be required to restore or replace a water supply if the 
landowner and operator have entered into a valid voluntary agreement 
under section 5.3 of the BMSLCA. This section is similar to a portion 
of section 5.3(a) of the BMSLCA. We did not approve that portion of 
section 5.3(a) that allowed compensation in lieu of restoration or 
replacement of affected water supplies. As the Director previously 
noted, OSM's policy as set forth in the preamble to the federal EPAct 
rules, is to require restoration or replacement. The federal rules do 
not allow operators and landowners to enter into voluntary agreements 
in lieu of restoration or replacement of affected water supplies. The 
full discussion of the Director's reasons for not approving a part of 
section 5.3 of the BMSLCA can be found in the discussion of that 
section earlier in this rulemaking. Section 89.152(a)(5)(ii) is not 
approved for the same reasons.
    Section 89.152(b). This subsection states that the section does not 
apply to underground mining activities that are governed by Chapter 87 
(relating to surface mining of coal). In our letter of June 21, 1999, 
to Pennsylvania, we noted that the preamble to the federal definition 
of ``replacement of water supply'' states that the ``definition is 
applicable to both underground coal mining operations and surface 
mining operations that affect water supplies.'' The preamble to the 
federal rules indicates that, ``The final rule is intended to apply to 
replacement of water supply under both sections 717(b) and 720(a)(2) of 
SMCRA.'' 60 FR at 16726. We asked Pennsylvania to clarify how the 
Pennsylvania program meets the federal regulations in protecting water 
supplies affected by both underground and surface mining operations.
    In its reply of June 1, 2000, Pennsylvania noted:

    [The] water supply replacement requirements originate in two 
different statutes. In cases where impacts are due to operations 
carried out below the surface in the workings of an underground 
mine, replacement requirements are driven by BMSLCA. In cases where 
impacts are due to activities at the land surface (i.e., surface 
mines, surface sites associated with underground mines, coal 
preparation plants and coal refuse disposal areas), requirements are 
driven by SMCRA. While replacement requirements are similar under 
both BMSLCA and SMCRA, there are subtle differences that demand 
separate treatment. For example, BMSLCA includes a rebuttable 
presumption provision that is defined by an angular projection from 
underground mine workings, whereas, the rebuttable presumption 
provision of SMCRA is defined by a horizontal projection from the 
area where activities take place at the surface. Due to these 
differences, effects resulting from surface operations at an 
underground mine must be treated separately from effects resulting 
from underground operations. In deciding the appropriate treatment, 
DEP first decides whether effects are due to activities at a surface 
site or activities in the underground mine workings. If the effects 
are due to operations in the underground workings, DEP applies the 
replacement requirements of 25 Pa Code 89.145a. If the effects are 
due to operations at a surface activity site, DEP applies the 
replacement requirements in section 87.119 or section 88.107.

    There is no direct federal counterpart. The federal regulations at 
30 CFR 817.41(j) require the permittee to replace any affected water 
supply that is affected by underground mining activities. The federal 
definition of ``underground mining activities'' at 30 CFR 701.5 
includes surface operations incident to underground coal extraction and 
underground operations. Section 89.152(b) merely delineates which parts 
of the Pennsylvania program address the various underground mining 
activities. Accordingly, it is not inconsistent with the requirements 
of SMCRA and the federal regulations. The Director notes that 
Pennsylvania's program amendment regarding water supply replacement 
provisions of surface mines, including surface operations incident to 
underground coal extraction, has not yet been approved by OSM.
    Section 89.153(a) and (b). This section deals with the relationship 
between a rebuttable presumption and water supply replacement. The 
provisions of subsections (a) and (b) are substantively identical to 
the provisions of section 5.2(c) of the BMSLCA. As we stated 
previously, there is no federal regulation that prohibits the state 
from enacting a rebuttable presumption for water supply replacement. In 
fact, by finding that operators are presumed responsible for 
replacement of water supplies, these regulations will assist in 
insuring that operators are promptly informed of their obligation to 
replace affected supplies and provide emergency and temporary water

[[Page 67048]]

promptly. Thus, the Director finds that these sections are in 
accordance with section 720(a)(2) of SMCRA, which requires the prompt 
replacement of a protected water supply.
    Section 89.153(c). This subsection provides that affirmatively 
proving that an operator was denied access to conduct a premining or 
postmining survey of a water supply does not relieve the operator of 
liability for the contamination, diminution or interruption when the 
landowner, affected water user or the Department proves the operator's 
underground mining activities caused the contamination, diminution or 
interruption. There is no direct counterpart to this section in the 
federal regulations. However, this section is not inconsistent with the 
requirements of SMCRA and the federal regulations because it does not 
eliminate an operator's responsibility and it is not inconsistent with 
enforcement actions where the regulatory authority has the initial 
burden of going forward with evidence. Therefore, the Director is 
approving this section.
    Section 89.154. This section describes the type and make up of maps 
to be submitted with the permit application. Subsection (a) describes 
the general mine map and the elements that are required to be 
incorporated into the map. Numerous provisions of this section were 
moved from 25 Pa. Code 89.142, which was previously approved by OSM. 
Specifically, 25 Pa. Code 89.142(a)(1) through (5) were moved to 25 Pa. 
Code 89.154. The Director is approving the subsections since they were 
previously approved by OSM and the federal rules have not changed since 
that approval.
    Section 89.142(a)(6) was also moved to 25 Pa. Code 89.154, with the 
exception of the deletion of references in subsections (6)(ii) and 
(iii) to buildings in place as of April 27, 1966, and the deletion of 
the reference to cemeteries in place as of April 27, 1966, in 
subsection (6)(iii). These references were deleted in PADEP's 
rulemaking of May 10, 1997 (27 Pa.B. 2371) that was made in response to 
Act 54's deletion of protection to structures in place as of April 27, 
1966. The May 10, 1997, rulemaking that modified subsections (6)(ii) 
and (iii) was not submitted to OSM for approval prior to the current 
amendment. The Director is approving the deletion of 25 Pa. Code 89.154 
because the deletion of references to April 27, 1966, provides 
protections no less effective than those found in the federal 
regulations. The deletion will not make Pennsylvania's program less 
effective than the federal program.
    In addition, several provisions not previously found in 25 Pa. Code 
89.142 were added to 25 Pa. Code 89.154. These include 25 Pa. Code 
89.154(6)(iii), (x), (xi), (xix). Section 89.154(a)(6)(iii) requires 
maps to contain structures or classes of structures listed in 25 Pa. 
Code 89.142a(f)(1)(i)-(v). Section 89.154(a)(6)(x) requires maps to 
depict oil, gas and coal slurry pipelines larger than 4 inches in 
diameter. Section 89.154(a)(6)(xi) requires maps to depict water and 
sewer main and transmission lines. Section 89.154(a)(6)(xix) requires 
maps to depict proposed underground workings, including a description 
of the location and extent of the areas in which planned subsidence 
mining methods will be used and the identification of all areas where 
measures will be taken to prevent or minimize subsidence and 
subsidence-related damage.
    The Director is approving these various subsections. The federal 
rule at 30 CFR 784.20(a)(1) requires a map of the permit and adjacent 
area showing the location and type of structures, lands and water 
supplies that could be affected by subsidence. The Pennsylvania rules 
list such items, therefore they are no less effective than the federal 
requirements for maps found in 30 CFR 784.20(a)(1). In addition, 
Pennsylvania's mapping requirements include items which are required 
under 30 CFR sections 783.24(c), 783.25(a)(1), 783.25(a)(4) and 
783.25(a)(5) and are no less effective than these federal regulations.
    In our letter of June 21, 1999, to Pennsylvania, we noted that this 
subsection does not contain a requirement that the general mine map 
include renewable resource lands or drinking or domestic or residential 
water supplies as is required by 30 CFR 784.20(a)(1).
    In its response to us of June 1, 2000, Pennsylvania noted that:

    Section 89.154(a) does require the General Mine Map to include 
water supplies (see subparagraph (6)(vii)). The definition of water 
supply under 25 Pa Code 89.5 includes domestic water supplies and 
virtually all other types of developed water supplies commonly found 
in the bituminous coal fields. There is also a general requirement 
to show all water wells under subparagraph (6)(xiv). These 
requirements would include all water supplies within the scope of 
the federal term, ``drinking, domestic or residential water 
supply.''
    Although section 89.154(a) does not include an explicit 
requirement to show renewable resource lands on the map, it does 
include requirements to map most elements that fall within the scope 
of the term, renewable resource lands. First of all, the General 
Mine Map must include the entire surface area above the proposed 
mine and additional area beyond the mine boundaries where structures 
may be damaged and surface lands may suffer material damage. This 
area would include all renewable resource lands that exist above or 
adjacent to the proposed mine. It would include the recharge area of 
aquifers that lie above and adjacent to the mine plan. It would also 
include areas where agricultural operations take place.

    The federal definition of ``renewable resource lands'' found at 30 
CFR 701.5 means aquifers and areas for the recharge of aquifers and 
other underground waters as well as areas for agricultural or 
silvicultural production, production of food and fiber, and grazing 
lands. The Director accepts Pennsylvania's position that 25 Pa. Code 
89.154 will require the requisite information on aquifers and areas for 
agricultural production and is approving this section.
    Section 89.154(b). This section requires mine maps to be submitted 
to the Department every six months and also gives the requirements for 
the objects that are to be included on the maps. There is no federal 
counterpart to this section. The Director finds that this section is 
not inconsistent with the requirements of SMCRA and the federal 
regulations because it will not limit protection to landowners and 
water users and will allow them to monitor the progress of underground 
mining operations. The Director is approving this section.
    Section 89.154(c). This section requires the six-month maps to be 
filed with the recorder of deeds for each county in which underground 
mining is projected and proof of filing to be submitted to the 
Department. There is no federal counterpart to this section. The 
Director finds that this section is not inconsistent with the 
requirements of SMCRA and the federal regulations because it will not 
limit protection to landowners and water users and will assure the 
progress maps are available to the public. The Director is approving 
this section.
    Section 89.154(d). This section provides that no underground mining 
may occur until it is shown as projected mining on the maps required by 
subsection (b) and the maps have been on file with the recorder of 
deeds office for 10 days. There is no federal counterpart to this 
section. The Director finds that this section is not inconsistent with 
the requirements of SMCRA and the federal regulations because it will 
not limit protection to landowners and water users and will assure 
mining maps delineating mining progress are

[[Page 67049]]

available for inspection. The Director is approving this section.
    Section 89.155. This section provides for public notice to property 
owners, utilities, and political subdivisions at least six months, but 
less than five years, prior to mining beneath the property. It also 
requires that the notice identify the area where underground mining 
will occur, the time frames for mining, the location where the maps and 
applications (which includes the subsidence control plan) may be 
inspected, and where the owners can submit complaints. These 
requirements are essentially the same as the requirements of the 
federal regulations at 30 CFR 817.122. The federal rules require at 
least six months notice to all owners and occupants. The notice must 
include the areas to be mined, the time frames and the location where 
the subsidence control plan may be examined. The Director is approving 
this public notice portion of the regulation because it is no less 
effective than the federal regulations at 30 CFR 817.122. However, the 
Director is requiring this section to be amended because of the use of 
the term ``underground mining.'' Please see the combined finding 
regarding use of the term ``underground mining'' as opposed to 
``underground mining operations'' at the end of the regulation section 
for more information.
    Sections 89.141(d), 89.141(d)(9), 89.142a(a), 89.142a(f)(1), 
89.142a(f)(2)(i), 89.142a(h)(1), 89.142a(h)(2), 89.142a(i)(1), 
89.143a(a), 89.143a(d)(1), 89.143a(d)(2), 89.143a(d)(3), 89.155(b)(1) 
and (2), and 89.155(c). The Director has found that these sections of 
25 Pa. Code Chapter 89 are less stringent than section 720(a) of SMCRA 
because of their reference to underground mining. These sections 
require a description of the impacts of underground mining on surface 
features, structures and facilities and provide performance standards 
to remedy those impacts. Section 720(a) of SMCRA requires underground 
coal mining operations to comply with those requirements. The term 
``underground coal mining operations'' is more expansive than 
Pennsylvania's definition of underground mining, which is defined at 25 
Pa. Code 89.5 to be the extraction of coal. The federal definition of 
underground coal mining activities describes underground operations as 
underground construction, operation and reclamation of shafts, adits, 
underground support facilities, in situ processing, and underground 
mining, hauling, storage and blasting. Thus, under Pennsylvania's 
proposed sections, the only activity that must meet the environmental 
requirements of Chapter 89 is coal extraction, while under SMCRA, all 
underground operations must meet the environmental requirements. The 
Director is requiring the above noted sections of 25 Pa. Code to be 
amended to be no less stringent than section 720(a) of SMCRA.

Summary Table

    The table below summarizes the Director's findings with regard to 
each section of 25 Pa. Code Chapter 89.

------------------------------------------------------------------------
                                 Sections of the
                              regulations under 25     Sections of the
                               Pa. Code Chapter 89  regulations under 25
 Sections of the regulations        that are         Pa. Code Chapter 89
under 25 Pa. Code Chapter 89      conditionally         that are not
      that are approved          approved or are    approved in whole or
                                 required to be            in part
                                     amended
------------------------------------------------------------------------
Section 89.5, the             89.141(d), (d)(3),    89.5, the
 definitions of the            (6), and (9).         definitions of the
 following terms:             89.142a(a)..........   following terms:
 ``dwelling,'' ``irreparable  89.142a(c)(3).......   ``de minimis cost
 damage,'' ``material         89.142a(d)..........   increase,'' ``fair
 damage,'' ``noncommercial    89.142a(f)(1).......   market value,''
 building,'' ``public         89.142a(f)(2)(i)....   ``permanently
 buildings and facilities,''  89.142a(g)(1).......   affixed appurtenant
 ``public water supply                               structures''.
 system,'' ``rebuttable                             89.142a(f)(1)(iii).
 presumption area,''                                89.143a(c).
 ``underground mining,''                            89.143a(d)(3).
 ``underground mining
 operations,'' ``water
 supply''.
                              89.142a(h)(1) and     89.144a(a)(1).
                               (2)
                              89.142a(i)(1)         89.145a(a)(1).
                              89.143a(a)            89.145a(f)(1)(v).
                              89.143a(d)(1) and     89.152(a)(2) and
                               (2)                   (4).
89.33.......................  89.145a(b)..........  89.152(a)(5)(i) and
                                                     (ii).
89.34.......................  89.145a(e)(1) and
                               (2)
89.35.......................  89.145a(f)(3)(i) and
                               (ii)
89.36.......................  89.146a(c)
89.67.......................  89.155(b)(1) and
                               (2), and (c)
89.141(a)
89.141(d)(2), (d)(4),
 (d)(5), (d)(7), (d)(8),
 (d)(10) and (d)(11)
Deletion of 89.142
89.142a(a)(1), (2), (3) and
 (4)
89.142a(b)
89.142a(c)(1) and (2)(i)-
 (vi)
89.142a(e)
89.142a(f)(1)(i), (ii),
 (iv), and (v)
89.142a(f)(2)(ii)
89.142a(g)(2), (3), and (4)
89.142a(i)(2), (j), (k), and
 (l)
Deletion of 89.143(a)
 through (g)
89.143a(b)
Deletion of 89.144
89.144a(a)(2), and (3)
Deletion of 89.145(a) and
 (b)
89.145a(a)(1)(i)-(vi)
89.145a(a)(2) and (3)
89.145a(c)
89.145a(d)
89.145a(f)(1)(i)-(iv)
89.145a(f)(2)
89.145a(f)(3)(iii)

[[Page 67050]]

 
89.145a(f)(4)
89.146a(a), and (b)
89.152(a)(1) and (3)
89.152(b)
89.153 (a) through (c)
89.154(a) through (d)
89.155(a), (b)(3) and (4)
------------------------------------------------------------------------

IV. Summary and Disposition of Comments

Federal Agency Comments

    On August 5, 1998, we asked for comments from various federal 
agencies that may have an interest in the Pennsylvania amendment 
(Administrative Record Number PA 841.08). We solicited comments in 
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of 
the federal regulations.
    The U.S. Department of Labor, Mine Safety and Health 
Administration, Coal Mine Safety and Health, Districts 1 and 2 
indicated it had no comments on the proposed amendment.
    The U.S. Fish and Wildlife Service (FWS) submitted comments 
regarding several areas. The first comments were concerned with 
endangered species. FWS pointed out that Pennsylvania's regulations at 
25 Pa. Code, Chapter 89, Subchapters A, D, E, F, and G do not mention 
endangered species protection. FWS goes on to say that the provision in 
Subchapter C, section 89.82(e) appears to be less protective than the 
federal requirement found in 30 CFR 773.15(c) and appears to apply only 
to reclamation activities. FWS also described the requirements for 
protection of endangered species found in Subchapter B, section 86.37. 
FWS concludes its comments on endangered species by indicating it is 
unclear whether the provisions of Chapter 86.37(a)(15) apply to all 
portions of Chapter 89, including the less protective section 89.82(e). 
OSM did not find these comments to be relevant to the amendment 
submitted by Pennsylvania. Pennsylvania is requesting to change its 
program to deal with subsidence damage to structures and water 
supplies. The portions of Chapter 89 dealing with endangered species 
were not part of the amendment Pennsylvania submitted for approval. 
Neither section 86.37 nor section 89.82 were requested to be changed by 
Pennsylvania in this rulemaking. These sections are part of 
Pennsylvania's approved program and as such it would be inappropriate 
for OSM to comment on them in the context of the current rulemaking.
    FWS also submitted comments regarding streams. FWS noted that 
Pennsylvania limits subsidence protection for streams to perennial 
streams, which is a limitation not found in the federal program. FWS 
asserts that there is no similar limitation in the federal program, 
which generally protects ``streams'' or ``intermittent and perennial'' 
streams. Presumably, FWS's assertion that Pennsylvania's program 
provides lesser protection to intermittent and perennial streams was 
made relative to full extraction mining and on the basis that proposed 
sections 89.141(d)(9) and (10) under subsidence control application 
requirements only mention perennial streams.
    Two points are relevant to address the FWS's concern. First, the 
above referenced requirements were previously included in the approved 
Pennsylvania program. More specifically, sections 89.141(d)(9) and (10) 
were previously addressed in the approved program under old section 
89.141(d)(2). Old section 89.141(d)(2) required a discussion of 
perennial streams based on 89.143(d) and 89.143(b)(1)(iv), 
respectively, and addressed the specific topics found at the new 
89.141(d)(9) and (10).
    Second, the Pennsylvania program requires the same level of 
subsidence damage prevention and mitigation for streams (perennial and 
intermittent) that is required under the federal requirements. Federal 
requirements address full extraction mining impacts to surface lands 
through a material damage standard. As noted in the preamble to the 
1995 federal EPAct rules, ``[T]he definition of ``material damage'' 
covers damage to the surface and to surface features, such as wetlands, 
streams, and bodies of water * * *'' (60 FR 16724). Under 30 CFR 
784.20(b)(8), the permit subsidence control plan must contain a 
description of the measures to be taken to mitigate any subsidence-
related material damage to the land. In addition, under 30 CFR 
817.121(c)(1), the permittee must correct any material damage resulting 
from subsidence caused to surface lands, to the extent technologically 
and economically feasible, by restoring the land to a condition capable 
of maintaining the value and reasonably foreseeable uses that it was 
capable of supporting before subsidence damage.
    With regard to Pennsylvania requirements, even prior to the 
proposed amendment, the approved program required the protection of 
surface lands (including perennial and intermittent streams) in a 
manner no less effective than federal standards. More specifically, old 
section 89.141(d)(2) and subsection (d)(2)(iii) required a description 
of the measures (both underground and on the surface) taken to prevent, 
minimize or avoid subsidence from causing damage or lessening the value 
or reasonably foreseeable use of the surface land. Old performance 
standards sections 89.143(e) and 89.145(a) required operators to 
maintain the value and reasonably foreseeable use of surface lands and 
to correct material damage to surface lands to the extent 
technologically and economically feasible by restoring the land to a 
condition capable of maintaining the value or reasonably foreseeable 
use. The proposed Pennsylvania amendment did not alter that level of 
protection. Under sections 89.141(d)(8) and 89.142a(e), Pennsylvania 
still requires operators to provide a description of the measures to be 
taken to maximize mine stability and maintain the value and reasonably 
foreseeable use of the surface land, and when damaged by subsidence, to 
correct material damage to surface lands to the extent technologically 
and economically feasible. In conclusion, OSM does not agree with FWS 
that Pennsylvania limits subsidence protection to perennial streams. 
Rather, Pennsylvania's regulations have in the past and will continue 
to after this approval, contain more specific language aimed at 
addressing basic federal requirements for the protection of those 
streams identified as perennial in nature.
    FWS also commented that Pennsylvania has reduced stream

[[Page 67051]]

protection in Chapter 89 by revising the definition of a perennial 
stream. While FWS admits the definition of a perennial stream in 
Chapter 89 closely matches the federal definition of perennial streams 
found in 30 CFR 701.5, it notes that Pennsylvania's implementing 
technical guidance document is not adequate. The technical document 
(TGD 563-2000-655) provides a methodology for proving a stream is not 
perennial that is not biology based, which could lead to a failure to 
protect many stream systems. FWS also questioned implementation of 
technical guidance document TGD 563-2000-655 with regard to evaluating 
restrictions on mining near streams. In this case FWS asked OSM to 
conduct a random sampling of streams undermined to evaluate the ability 
of the TGD to predict subsidence effects on streams before OSM accepts 
the TGD as part of Pennsylvania's program amendments. Finally FWS 
indicated TGD 563-2000-655 is inconsistent with SMCRA and the Clean 
Water Act because it does not adequately address aquatic life issues.
    Pennsylvania did not amend its definition of ``perennial stream'' 
in this rulemaking. Also Pennsylvania did not submit technical document 
(TGD 563-2000-655) as part of this program amendment. As a result, OSM 
did not review it in conjunction with the amendment. Since the 
definition and the technical document are outside the scope of the 
amendment, OSM is not required to respond to this comment.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to 
solicit comments and obtain the written concurrence of the EPA with 
respect to those provisions of the proposed program amendment that 
relate to air or water quality standards promulgated under the 
authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean 
Air Act (42 U.S.C. 7401 et seq.). By letter dated August 5, 1998, we 
requested comments and concurrence from EPA on the Commonwealth's 
proposed amendment of the BMSLCA and implementing regulations 
(Administrative Record Number PA 841.08). EPA responded on April 26, 
2001 (Administrative Record Number PA 841.07), that it had no 
objections or specific comments on the proposed amendments. However, 
EPA did wish to convey its concerns about the impact of longwall mining 
operations on streams and noted that it supports continued evaluation 
of the extent of impacts and the development of solutions for 
preventing, minimizing, or mitigating objectionable impacts.
    OSM solicited, but did not receive, comments from the Advisory 
Council on Historic Preservation, and the U.S. Department of 
Agriculture, Soil Conservation Service.

State Agency Comments

    The Pennsylvania Fish and Boat Commission (PA FBC) commented that 
sections 89.34, 89.35 and 89.36 are discussed in the amendment but only 
in relation to water supply protection. PA FBC believes these sections 
need to be further revised to include the protection of surface and 
groundwater to better protect the streams in areas of high extraction 
mining.
    PA FBC is correct in its assertion that sections 89.34, 89.35, and 
89.36 were modified to provide additional protection for water 
supplies. In submitting this amendment, Pennsylvania was responding to 
the federal rules regarding restoration or replacement of water 
supplies. These federal rules do not provide additional protection from 
subsidence to streams. As noted in our response to comments by FWS, 
Pennsylvania's amendment does not alter the minimum federal 
requirements with respect to streams.
    PA FBC also commented on Pennsylvania's Technical Guidance Document 
(TGD 563-2000-655) regarding the definition of a perennial stream. PA 
FBC's comments were similar to the comments provided by FWS on the same 
subject. Please see the FWS comments regarding TGD 563-2000-655.
    OSM solicited, but did not receive, comments from the Pennsylvania 
Historical and Museum Commission, Bureau of Historic Preservation.

Public Comments

    Public comments were received in writing and orally at the public 
hearing held in Washington, Pennsylvania on October 13, 1998. Sixteen 
people spoke at the public hearing. Additionally, we received written 
public comments, before and after the public hearing, from three 
citizen's groups, and seven private citizens. We also received comment 
letters from an industry group and four coal companies. In response to 
our reopening of the public comment period on December 8, 2000, we 
received comments from a citizen's group and an industry group. We have 
organized these comments and our response by the section of the BMSLCA 
or the regulations they pertain to. We also have a section of general 
comments that did not pertain to any specific portion of the BMSLCA or 
the regulations.
    One commenter incorporated by reference OSM's November 12, 1996 and 
November 22, 1996 preliminary comments to Pennsylvania on Act 54 and 
Pennsylvania's not yet finalized regulations. Pennsylvania's 
regulations were adopted by the Pennsylvania Environmental Quality 
Board on March 17, 1998, and published in the Pennsylvania Bulletin on 
June 13, 1998. On July 29, 1998, pursuant to 30 CFR 732.17(b), 
Pennsylvania submitted Act 54 and the finalized regulations to OSM for 
its review. Accordingly, the preliminary issues raised by OSM in the 
1996 letters were either addressed in the two ``issue letters'' sent by 
OSM to Pennsylvania requesting clarification of numerous issues 
[letters dated June 21, 1999 (Administrative record number PA 841.32) 
and June 23, 2000 (Administrative record number PA 841.40)] or 
satisfied by either changes in Pennsylvania's regulations or by 
Pennsylvania's explanations that were submitted as part of the July 
29th submission. Pennsylvania responded to the first issue letter on 
June 1, 2000 (Administrative record number PA 841.39) and to the second 
on July 18, 2000 (Administrative record number PA 841.41). The 
substance of the issue letters and Pennsylvania's responses are 
discussed in the findings portion of this final rule. Therefore, OSM is 
not addressing its own preliminary 1996 comments on a separate basis.
    Comments on the changes to the BMSLCA:
Section 5.1(a)(1)
    Commenters noted that section 5.1(a)(1) of the BMSLCA only requires 
operators to provide an alternate water source that adequately services 
in quantity and quality the premining use or the foreseeable uses of 
the supply, which is contrary to the provisions of section 720(a)(1) of 
SMCRA. The commenters believe SMCRA requires restoration of water 
supplies to premining quality and quantity, which could be a higher 
standard than the use-based standard of the BMSLCA.
    Other commenters voiced similar concerns and added that 
Pennsylvania's ``adequate for use'' standard, in many cases, would not 
meet state or federal requirements to maintain the value and use of the 
land.
    The Director has found that Pennsylvania's program regarding the 
quality of replacement water supplies is as effective as the federal 
regulations. For an explanation of the reasons behind the Director's 
decision, please see the discussion regarding section 5.1(a)(2). 
Regarding quantity, the Director has conditionally approved

[[Page 67052]]

Pennsylvania's program to insure that replacement supplies and delivery 
systems will be of a caliber that will maintain the value and 
reasonably foreseeable uses of the land.
Section 5.1(a)(2)
    Commenters contended that this section sanctions replacement of a 
marginally acceptable water quality, rather than requiring replacement 
of equivalent quality, by requiring that the water meet minimum 
standards defined under the Safe Drinking Water Act.
    The Director believes that with respect to water quality, an 
equivalency determination can be made in terms of suitability for 
particular uses rather than requiring that the chemical composition of 
the replacement supply be identical to that of the premining supply. As 
a result, Pennsylvania's program will insure that water quality of 
replacement supplies will be equivalent to premining supplies. For more 
information on the Director's decision to approve this portion of the 
amendment please see the discussion of section 5.1(a)(2) of the BMSLCA 
in the Director's findings.
Section 5.1(a)(3)
    Commenters alleged that when mining damages investor-owned water 
supply systems, the added costs of repairs are passed to water users in 
the form of higher water bills. The commenters believe that operators 
who cause the damage should pay for the repair of utility lines.
    OSM does not agree with this comment. The federal regulation at 30 
CFR 817.180 regarding utilities only requires that underground mining 
activities be conducted in a manner that minimizes damage, destruction 
or disruption of services provided by utilities. The rules do not 
require operators to reimburse utilities for damage to utility lines.
Section 5.1(b)
    Commenters noted that this section eliminates a mine operator's 
responsibility for replacement of damaged water supplies if a claim of 
contamination, diminution or interruption is made more than two years 
after the supply has been adversely affected. The commenters believe 
this section is contrary to SMCRA because there is no limitation of 
action provided under federal law, and that section 509 of SMCRA 
requires a performance bond that extends for a minimum of five years 
after reclamation. The commenters believe that the federal rules 
indicate that wherever and whenever it is shown mining activity caused 
the loss, the operator is responsible for replacing it.
    OSM agrees that this section is less stringent than SMCRA. For the 
reasons discussed in the finding for section 5.1(b), this section has 
not been approved by the Director.
Section 5.2
    One commenter referenced the November 12, 1996 comments from OSM to 
Pennsylvania. As stated earlier, OSM is not addressing its own 
preliminary 1996 comments on a separate basis.
Section 5.2(a)(1)
    Commenters noted that this section obligates citizens whose water 
supply has been damaged to first contact the operator. The commenters 
were concerned with the part of section 5.2(a)(1) requiring the 
operator to investigate reported water losses with reasonable diligence 
because there is no time frame limiting how long the company can take 
to conduct the investigation nor does the section define reasonable 
diligence.
    The Director recognizes the commenters' concerns regarding timely 
investigation of citizen complaints and has approved the portion of 
section 5.2(b)(2) dealing with inspection to the extent that 
Pennsylvania recognizes that the approved program may require a more 
timely response to complaints than that required by this section. 
Additionally, the Director believes the amendment required of section 
5.1(a)(1) of the BMSLCA responds to the commenters' concerns regarding 
the prompt replacement of all adversely affected water supplies.
Section 5.2(b)(2)
    A commenter contended that this section allows up to 45 days for 
investigation of a claim of water loss, which contrasts with the 
federal law requiring prompt replacement of water supplies. OSM does 
not fully agree with this comment. In this section, Pennsylvania has 
placed a cap on the length of time an investigation may continue. There 
is no federal requirement limiting the length of time of 
investigations. As noted in the approval of this requirement, the 
Director is approving this portion of section 5.2(b)(2) to the extent 
that Pennsylvania recognizes that the approved program may require a 
more timely response to complaints than that required by this section.
    A commenter also claimed that this section is not as effective as 
the federal regulations because it allows up to three years for 
permanent water supply replacement whereas the federal law defines 
prompt replacement as no longer than two years. For the reasons 
discussed in the finding for section 5.2(b)(2), the Director also 
agrees that this is less effective. The time frames for water supply 
replacement in the preamble to the federal regulations (60 FR 16727) 
are ``* * * intended to assist regulatory authorities in deciding if 
water supplies have been `promptly' replaced.'' The guidance indicates 
a permanent water supply should be provided within two years. Because 
section 5.2(b)(2) of BMSLCA can allow three years to pass before PADEP 
is required to issue orders for replacement, the Director has not 
approved the phrase in this section that reads, ``* * * where the 
contamination, diminution or interruption does not abate within three 
years of the date on which the supply was adversely affected.''
    A commenter further alleged that it is unclear whether the term 
``orders'' included in section 5.2(b)(2) contemplates an enforcement 
order. The Director has found that the Pennsylvania program adequately 
defines the orders that can be written in response to violations. 
Section 5.2(b)(2) describes the circumstances that may result in an 
order, but the approved program already defines the types of orders 
that Pennsylvania will issue. It is unnecessary to restate the types of 
orders that can be issued in this section.
Section 5.2(d)
    One commenter noted if a landowner fails to allow access for a 
premining survey, and the landowner has been advised of the rights 
established by sections 5.1 and 5.3, the operator can escape liability 
where damage occurs unless the injured party has baseline data relative 
to the affected water supply. The commenter believes that this section 
limits the evidence that a water supply user or landowner can introduce 
in a manner that is improper and inconsistent with federal law. The 
commenter also asserted that it improperly shifted the burden of 
collecting hydrologic data to the landowner, that there was inadequate 
notice, and that the 10 day access period was too short.
    Another commenter averred that this section's response to 
landowners who refuse operators requests to conduct a premining 
inspection is punitive and not in accordance with the federal 
regulations.
    OSM agrees with these comments. The Director is not approving a 
portion of section 5.2(d) regarding burden of proof. This action will 
respond to the commenter's concerns that this section

[[Page 67053]]

will limit the evidence a water supply user or landowner can introduce 
to prove the effects of subsidence on a water supply. For a full 
discussion of the specific language and the reasons for not approving 
part of section 5.2(d), please see the discussion of that section 
earlier in this rulemaking.
Section 5.2(e)
    Commenters contended that sections 5.2(e)(1), (2) and (3) each 
attempt to release an operator of responsibility for water loss in ways 
that are improper under federal law. The commenters believe that 
subsection (1), which relieves an operator from liability where the 
premining survey shows that the contamination, diminution or 
interruption existed prior to mining, appears to grant conclusive 
effect without allowing inquiry into whether the survey is accurate or 
sufficient to demonstrate a lack of causation.
    The Director does not agree that this section limits the rights of 
landowners to challenge whether the survey is accurate or sufficient to 
demonstrate a lack of causation. Pennsylvania responded to a similar 
question in the preamble to its regulations regarding subsidence damage 
repair and water supply replacement (28 Pa.B. 2776). Pennsylvania noted 
that if a landowner disagreed with the premining survey results, he or 
she could arrange to have a certified laboratory conduct an independent 
survey at their own expense or ask PADEP to conduct a review of the 
results of the mine operator's survey and conduct additional testing, 
if necessary. Clearly, Pennsylvania envisioned that the results of 
premining sampling could be challenged.
    The commenters further noted that subsection (2) relieves the 
operator of liability after a three-year lapse of time after mining. 
The commenters were concerned because the time of mining is not 
directly related to the timing of water loss, and this fails to 
consider that subsidence may not occur immediately, or that other 
factors may contribute to the water loss. The commenters further stated 
that the three-year limit is also arbitrary and inconsistent with the 
federal act which reserves jurisdiction and allows reassertion of 
jurisdiction at any time.
    Finally, a commenter maintained that bond release should not 
terminate operator liability.
    OSM generally agrees with the commenters. The Director has not 
approved this section because allowing an operator to be relieved of 
the liability to restore or replace affected water supplies three years 
after underground mining activities have ceased is inconsistent with 
SMCRA and the federal regulations. For a complete discussion of our 
reasons for not approving this section, see the discussion of section 
5.2(e)(2).
    With regard to the comment regarding bond release terminating 
operator liability, we have found that this section of the BMSLCA does 
not provide for termination of liability at bond release.
    Finally, the commenters noted that subsection (3) appears to allow 
the operator to avoid responsibility by identifying another cause for 
the water loss. The commenters believed that OSM should seek an 
attorney general's opinion that the law assures that where the operator 
is partially or entirely responsible, state law imposes liability.
    OSM did seek and receive a legal opinion from Pennsylvania 
regarding assignment of liability when two or more operators are 
responsible for water degradation, diminution or interruption. The 
Assistant Director for the Bureau of Regulatory Counsel wrote a 
memorandum dated May 15, 2000 (Administrative Record No. PA 841.39 
document number 2 of 4), in which he indicated that the General 
Assembly's intent was to provide a remedy for water supplies affected 
by underground mining. This section is to be construed to relieve an 
operator of responsibility only where the contamination, diminution or 
interruption occurred solely as a result of some cause other than 
mining. Where mining is partly the cause of the contamination, 
diminution or interruption, the mine operator will not be relieved of 
the statutory obligation to restore or replace the affected water 
supply. The Director found that this opinion effectively answered the 
commenters' concerns.
Section 5.2(g)
    Commenters alleged that section 5.2(g), which allows property 
purchase as an alternative to water supply replacement, is inconsistent 
with federal law because federal regulations require the operator to 
demonstrate that a suitable water source is available and could be 
feasibly developed. The commenters noted that the preamble to the 
federal regulations at 60 FR 16727 states that the intent of EPAct is 
that the current owner or successor could utilize the water if desired 
in the future. The commenters believe that there is no opportunity 
under the federal law for a company to avoid demonstrating that a 
replacement supply could be developed even if a landowner waives 
replacement.
    Additionally, one commenter asserted that absent a demonstration by 
the operator that water quality and quantity can be protected or 
alternative supplies provided, a mining permit should not be issued.
    OSM agrees with these comments. The Director has not approved 
section 5.2(g) of the BMSLCA. As noted in the preamble of the federal 
regulations on subsidence control (60 FR 16733), EPAct requires 
replacement of water supplies affected by subsidence. Compensation in 
lieu of replacement is not an option. The intent of the federal rules 
is to provide a water supply for current and future landowners. 
Compensation for a water loss or degradation will not allow water 
supplies to be available for future use.
    Additionally, the federal regulation at 30 CFR 784.20(b)(8) 
requires subsidence control plans to contain a description of the 
measures to be taken to replace adversely affected protected water 
supplies if the presubsidence survey shows, or the regulatory authority 
determines, that diminution, contamination or interruption could occur. 
Thus, this section requires the permit application to contain 
information on water supply replacement before the permit is issued. 
With this information in the permit application, there would be no need 
for compensation in lieu of replacement, since replacement supplies 
must be designated before the permit is issued.
Section 5.2(h)
    A commenter took exception with PADEP's role in providing advisory 
opinions. The commenter noted that if it was PADEP's opinion a water 
supply could be replaced, it should be replaced instead of allowing 
operators to offer compensation in lieu of replacement.
    OSM agrees that this section provides remedies to operators that 
are inconsistent with the federal rules. The Director has not approved 
this section because it is connected with section 5.2(g) that allows 
compensation for damage to water supplies in lieu of replacement or 
restoration. The Director found that section 5.2(h) is not self-
sustaining and is unenforceable without section 5.2(g). Therefore, it 
is inconsistent with the requirements of SMCRA and the federal 
regulations.
Section 5.3(c)
    A commenter proposed that section 5.3(c), which provides landowners 
and water users who pursue water replacement through the courts subject 
themselves to the provisions in their deeds and leases, should be 
removed from the BMSLCA. The commenter felt that this provision rules 
out most citizen's rights to pursue justice in the

[[Page 67054]]

courts and overrides EPAct's requirement for water supply replacement 
wherever underground mine operations damage or disrupt water supply.
    The Director has found that section 5.3(c) is inconsistent with 
section 720(a)(2) of SMCRA and the federal implementing rules to the 
extent that any state law negates the requirements of, or provides less 
protection than, EPAct. For a complete discussion of the matter, please 
see the Director's decision with regard to section 5.3(c).
Section 5.4
    A commenter claimed that section 5.4 fails to require permittees to 
be responsible for subsidence damages in addition to operators and the 
use of the term ``proximity'' in section 5.4 unreasonably restricts an 
unqualified obligation to repair or compensate for material damage to 
non-commercial buildings and dwellings and related structures.
    OSM disagrees that section 5.4 fails to make permittees responsible 
for damages in addition to operators. Under 25 Pa. Code 86.11(a) no 
person may operate a mine without obtaining a permit. Section 86.11(b) 
indicates that permits will be issued only to an operator. Since only 
operators can obtain a permit, Pennsylvania's use of the term 
``operator'' is as effective as the federal definition of ``permittee'' 
at 30 CFR 701.5, which defines the term to mean a person holding or 
required to hold a permit to conduct surface coal mining and 
reclamation operations.
    OSM also disagrees with the commenter on the use of the term 
``proximity.'' Section 5.4(a) of the BMSLCA extends the requirements of 
compensation or restoration to damaged structures that overlie or are 
in the proximity of the mine. OSM requested that Pennsylvania define 
what was meant by the term ``proximity.'' Pennsylvania indicated that 
it understands the term to mean the structures defined in this section 
do not have to be directly above the mine workings in order to be 
covered by repair or compensation requirements. The phrase recognizes 
the fact that subsidence effects often extend outward from points where 
coal mining activities occur. Pennsylvania noted that the phrase is not 
interpreted to impose any specific distance limitations. The Director 
accepted this explanation of section 5.4(a).
    A commenter stated that the term ``building'' does not include 
appurtenant structures and utilities annexed to those structures such 
as sewer lines, etc.
    OSM disagrees in part with the commenter's assertion that the term 
``building'' does not include appurtenant structures and utilities 
annexed to those structures such as sewer lines, etc. Pennsylvania's 
regulatory definition of permanently affixed appurtenant structures 
includes many of the structures that are within the definition of 
occupied dwelling and structures related thereto that is found in the 
federal regulations at 30 CFR 701.5. However, any structures that are 
not permanently affixed to the ground, Pennsylvania refers to as 
improvements. As noted in the findings regarding section 5.4, OSM 
expressed concerns with Pennsylvania's position on improvements and the 
same are addressed in the discussion thereof.
    The same commenter noted that the requirement of ``prompt'' repair 
or replacement is absent from section 5.4. It is further alleged that 
this section fails to assure that the structure owner is paid the full 
amount of the diminution in value resulting from the subsidence-related 
damage. Additionally, the commenter contended that sections 5.4 and 
5.5, through the use of time limits for filing claims, and agreements 
on compensation amounts and repair, infringes on the rights of 
landowners to prompt repair, replacement or compensation in full and to 
an unqualified right to secure immediate state and/or federal 
inspection of failures of the operators to provide compensation or 
repair.
    OSM agrees with the comment that Pennsylvania's program fails to 
include a prompt standard for repair or compensation for subsidence 
damage. The Director's decision with regard to this issue can be found 
in the discussion of section 5.5(b).
    OSM disagrees with the commenter that the section fails to assure 
that the structure owner is paid the full amount of the diminution in 
value resulting from the subsidence-related damage. As discussed in the 
findings regarding section 5.4(a), the Director believes that this 
section is consistent with SMCRA and the federal rules.
    OSM agrees that the use of time limits for filing claims is less 
effective than the federal rules. For a complete discussion of this 
issue, see the Director's findings of this section.
    OSM agrees in part that some agreements on compensation amounts or 
repair are less effective than the federal regulation requirements. As 
stated more fully in the Director's findings, if the agreements provide 
for the same protection as SMCRA then they are approvable. However, if 
the agreements provide for something less than what is required by 
SMCRA, then they are less effective.
    Finally a commenter stated that the BMSLCA should be changed to 
include repair or compensation for damages to improvements to occupied 
dwellings.
    OSM agrees with this comment. The Director believes that the 
changes required in this rulemaking to the definition of permanently 
affixed appurtenant structures and to section 5.4(a)(3) of the BMSLCA 
will satisfy the commenter's concerns.
Section 5.4 and 5.5
    One commenter complained that mining companies only have to place a 
$10,000 bond to begin to destroy homes and water quality.
    To address bonding issues, the Director has required Pennsylvania 
to submit an amendment to section 6 of the BMSLCA complying with 30 CFR 
817.121(c)(5) which requires an adjustment of bond for subsidence 
damage. This provision requires an increase in bonds for damage to 
protected structures and water supplies if repair, compensation or 
replacement takes longer than 90 days.
    Another commenter contended that where a homeowner's survey or an 
expert witness has found that damage to a structure was obviously 
caused by mining, an operator should be required to repair or 
compensate the landowner, even if no premining survey was completed.
    OSM agrees that, under the federal program, the lack of a premining 
survey does not limit an operator's liability for repair or 
compensation. Accordingly, the Director has not approved the portions 
of the BMSLCA that limit operator's liability in those cases.
    Finally, a commenter maintained that private agreements must not be 
allowed where they limit the protections provided in the federal 
regulations.
    OSM agrees with this comment. The Director has found that nothing 
in the federal regulations prevents private agreements, however the 
terms of an agreement cannot diminish the protections afforded by EPAct 
and the federal regulations.
Section 5.6
    One commenter stated that the BMSLCA needs to be changed to 
prohibit mining agreements that allow less than full compensation for 
repair of subsidence damage and water supply replacement. The commenter 
alleged that industry's use of confidential agreements and high-
pressure tactics make homeowners feel they will be better off by 
signing these agreements. The commenter claimed that although

[[Page 67055]]

OSM requires full compensation, homeowners are discouraged from 
bringing these agreements to OSM and that Pennsylvania looks at 
agreements as a credible resolution and does not normally interfere 
with them.
    As noted in the discussion of section 5.6, the Director approved 
the use of agreements only to the extent that any release in a 
voluntary agreement does not limit the protections of EPAct. There is 
nothing in the federal regulations prohibiting agreements between 
landowners and mining companies, however any agreement that provides a 
lesser amount of protection than is afforded by the federal regulations 
would not preclude enforcement of the regulatory requirements.
Section 5.6(c)
    One commenter claimed that structures covered by requirements to 
repair or compensate for subsidence damage under federal law are exempt 
under Act 54. The commenter felt that agreements homeowners entered 
into after April 27, 1966, but prior to the effective date of Act 54, 
which provide for a waiver or release of the duty to repair or 
compensate, should not be valid.
    OSM agrees with the commenter's concerns involving agreements made 
after April 27, 1966, but before the effective date of Act 54. The 
Director has not approved the last two sentences of this portion of the 
amendment. These sentences state, ``Nothing herein shall impair 
agreements entered into after April 27, 1966, and prior to the 
effective date of this section, which, for valid consideration, provide 
for a waiver or release of any duty to repair or compensate for 
subsidence damage. Any such waiver or release shall only be valid with 
respect to damage resulting from the mining activity contemplated by 
such agreement.'' The Director found these statements could validate 
agreements that are not as protective as the federal regulations and 
therefore has not approved the language.
Section 6
    The Pennsylvania Coal Association (PCA) commented on financial 
guarantees for subsidence repair. PCA indicated that although the 
proposed program amendment does not require adjustment of the 
performance bond amount if subsidence causes damage to protected 
structures, bond adjustment is authorized by Pennsylvania's primacy 
regulations at 25 Pa. Code 86.152. PCA notes that while Act 54 does not 
require adjustment of the bonds for subsidence damage, it mandates use 
of an escrow mechanism to assure funds are available to mitigate 
damage. Operators are required to deposit funds in the escrow within 
six months if they wish to contest the repair obligations, or have not 
complied with the obligations. PCA asserts that the escrow option 
guarantees the repair or compensation obligations of section 720 of 
SMCRA.
    Other commenters presented the opposing view that Pennsylvania's 
current bonding system is not sufficient to assure correction of 
subsidence-related damage. One commenter opined that the longwall 
mining regulations must be strengthened to shift the balance of power 
from the coal companies to a middle ground between coal operators and 
homeowners. The commenter discussed the disruption subsidence from 
longwall mining takes on personal and professional lives and felt that 
the bond posted should be equal to the fair market value of the home.
    Two other commenters indicated that Pennsylvania has no provision 
for bonding for water loss and, in practice, requires only a $10,000 
bond for structure repair. The commenters further claimed that 
homeowners need to be assured that funds are available for complete 
repairs and for water supplies, which could mean extensive new water 
lines in some areas.
    We agree with the commenter that Pennsylvania does not require a 
bond for water loss. Additionally, as we noted in our discussion of 
section 6 of Pennsylvania's statute, the bond amount at the time of 
application may not be sufficient to repair or compensate for 
structural damage if the bonds are to be used to reclaim the site as 
well. While the escrow payments may adequately provide for correction 
of damage, they are not required unless the operator appeals an order.
    Finally, we do not agree with PCA's assertion that 25 Pa. Code 
86.152 requires adjustment of bond for subsidence damage. The provision 
at that section is discretionary on the part of Pennsylvania. 
Accordingly, there are no provisions in the Pennsylvania program that 
require the submission of additional bond in the event subsidence 
damage is not corrected. The Director, therefore, has required 
Pennsylvania to amend its program to include bonding provisions as 
effective as those found in 30 CFR 817.121(c)(5).
Section 9.1(b)
    A commenter stated that the term ``minimize'' should mean a 
reduction in damage to the greatest extent possible. The commenter 
believes PADEP uses the term ``minimize'' to mean a reduction of damage 
in any amount. The commenter further indicated that damage should be 
minimized to a different level than the irreparable damage level of the 
Pennsylvania program.
    OSM agrees that damage minimization must take place. The federal 
regulations at 30 CFR 817.121 require minimization of material damage 
to the extent economically and technically feasible except in certain 
circumstances. The steps to be taken to minimize damage would vary from 
case to case and would also depend on a judgment of the economic and 
technical circumstances surrounding the measures. As a result, the 
commenter's concern on PADEP's interpretation of the level of 
minimization would be largely dependent on site-specific circumstances 
and would have to be evaluated in that respect.
    OSM agrees that Pennsylvania must minimize material damage to 
certain structures. The Director is requiring Pennsylvania to amend its 
program to require minimization of material damage.
Section 18.1(d)
    A commenter contended that this section could be read to prevent 
data collection required to meet permitting requirements, rather than 
merely to restrict data collection solely to augment the analysis of 
deep mine impacts on water resources. The commenter felt that the final 
phrase, which refers to data collection outside of the context of this 
section, implies that the language of section subsection (d) is 
intended to have broader application.
    OSM does not agree with the commenter's interpretation of this 
section. This section requires a compilation of information from deep 
mine permit applications, monitoring reports and other data submitted 
by operators, from enforcement actions and from any other appropriate 
source. As stated on Pennsylvania's website, the purpose of section 18 
is to require Pennsylvania to ``assess the surface impacts of 
underground mining on buildings, water supplies and streams every five 
years.'' See, www.dep.state.pa.us/dep/deputate/minres/bmr/act54/index.html. This section does not seek to limit information already 
required by the Pennsylvania program. It only requires a compilation of 
information already required to be submitted. Subsection (d) does not 
allow PADEP to request additional information (except for water loss 
incidents or claims) to fulfill these provisions. While there is no 
direct corresponding federal requirement to this section, the Director 
found that this

[[Page 67056]]

portion of the amendment does not limit the rights and protections of 
the federal requirements.
    Comments on regulation changes at 25 Pa. Code Chapter 89
Section 89.5(a), Definition of De Minimis Cost Increase
    One commenter stated that this section allows the operator to forgo 
payment of a de minimis cost, which is less than 15% of the operating 
and maintenance costs or less than $60 a year. The commenter maintained 
that this is a significant sum to many rural homeowners when paying 
over a 20 year period and that the federal rules make no such 
exemption.
    OSM agrees with the comment. The Director has found that passing 
along the cost of a treatment system, even if the increased cost is de 
minimis, does not make a landowner or water user who has experienced 
water supply problems as a result of subsidence whole. The federal 
regulations require operators whose mining operations caused water 
supply contamination, interruption or diminution to replace or restore 
water supplies, including the cost of treatment if necessary.
Section 89.141(d)
    A commenter noted that this section requires only a description of 
measures to correct damage to homes--allowing any amount of damage to 
homes short of irreparable damage, which PADEP must predict. The 
commenter pointed out the requirements to minimize damage found at 30 
CFR 784.20 and 30 CFR 817.121(a)(1) and (2). The commenter felt that 
OSM must find sound methods for minimizing damage and use the 
dictionary meaning of minimize, which is to ``make the least of '' not 
just lessen or moderate.
    OSM agrees that Pennsylvania's program does not contain damage 
minimization requirements below the irreparable damage level. The 
Director is requiring Pennsylvania to amend its program to require 
operators to minimize material damage to homes and non-commercial 
structures to the extent technologically and economically feasible.
Section 89.142a(f)(1)(ii)
    One commenter asserted that non-commercial buildings not used by, 
or accessible to, the public are covered in the federal rules at 30 CFR 
817.121(c) but not covered in Pennsylvania's program.
    OSM does not agree with the comment regarding protection of non-
commercial buildings. Pennsylvania's definition of non-commercial 
buildings is substantially the same as the federal definition at 30 CFR 
701.5 and section 89.142a(f)(1)(ii) provides protection to non-
commercial buildings. More information on this subject can be found in 
the discussion of section 5.4(a)(1) of the BMSLCA.
Section 89.142a(f)(1)(iii)
    A commenter noted that this section provided some exemptions to 
protections found in federal regulations because it does not provide 
protection for improvements made after Act 54's effective date or date 
prior to the operator's next permit renewal. The commenter also stated 
that the federal rules have a rebuttable presumption of subsidence-
related damage for homes with the 30-degree angle of draw from 
underground mining activities, but Pennsylvania's regulations do not 
contain a similar presumption for damages to structures.
    OSM agrees with the comment regarding limitations on protections 
being dependent on the date of the operator's next permit renewal. As 
noted in the discussion in this rulemaking of section 5.4(a)(3) of the 
BMSLCA, the Director did not approve the phrase ``improvements in place 
on the effective date of this section or on the date of the first 
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the 
boundary of the entire mine as depicted in said application.''
    OSM does not agree with the comment regarding angle of draw. As 
noted elsewhere in this rulemaking, OSM suspended its rules regarding a 
rebuttable presumption of causation by subsidence (30 CFR 
817.121(c)(4)(i) through (iv)) in a December 22, 1999, Federal Register 
notice (64 FR 71652). As a result of the suspension, Pennsylvania does 
not need to include a counterpart to this regulation in its program.
Section 89.142a(g)
    One commenter alleged that Pennsylvania does not intend to hold 
coal operators responsible for damage to investor-owned utilities, an 
exemption not included in the federal rules at 30 CFR 817.180. The 
commenter felt that this lack of conformity to the federal rules would 
result in higher utility costs to homeowners.
    OSM does not agree with this comment. The provision of section 
89.142a(g)(1) protects all structures protected by the federal 
regulations at 30 CFR 817.180. The commenter is apparently referencing 
remarks made by Pennsylvania in the preamble to the regulations on 
subsidence damage repair and water supply replacement. In the preamble 
(28 Pa.B. 2767), Pennsylvania noted that with respect to the definition 
of the term ``water supply'' it did not want to include language in 
that definition that could be interpreted to include investor-owned 
water transmission utilities. Pennsylvania indicated that the preamble 
discussion was made to illustrate the difference between connections 
from a well or spring to a residence and connections made to a water 
main that is part of a public water supply system. Connections from a 
well or spring are permanent affixed appurtenant structures that must 
be repaired by the mine operator if damaged. Damage to a water main and 
that part of the connecting piping that is owned by the water company 
would be covered under Pennsylvania regulation section 89.142a(g) 
relating to protection of utilities.
    However, even though section 89.142a(g) protects the same types of 
utilities as the federal program it does not provide the same level of 
protection as the federal program. Pennsylvania protects utilities from 
underground mining while the federal program protects utilities from 
underground mining activities. The federal definition of underground 
mining activities includes more activities than the Pennsylvania 
definition of underground mining, which only pertains to removal of 
coal. The federal definition of underground mining activities found at 
30 CFR 701.5 includes a combination of surface operations incident to 
underground extraction of coal as well as underground operations. This 
would include construction, use, maintenance, and reclamation of roads, 
above-ground repair areas, storage areas, processing areas, shipping 
areas, areas upon which are sited support facilities including hoist 
and ventilating ducts, areas utilized for the disposal and storage of 
waste and areas on which materials incident to underground mining 
operations are placed.
    Another commenter suggested that the word ``prevent'' should be 
substituted for the word ``minimize.'' Section 89.142a(g) requires 
underground mining to minimize damage, destruction or disruption of 
utilities. The federal rules at 30 CFR 817.180 do not require 
prevention of damage, but rather minimization, the same as the 
Pennsylvania rule. Therefore, OSM does not agree that the word 
``minimize'' should be changed.

[[Page 67057]]

Section 89.142a(h)
    A commenter claimed that Pennsylvania's program does not provide 
for the premining monitoring of flow in perennial streams, which makes 
it impossible to determine adverse impacts by mining operations since 
no standard for comparison exists.
    OSM does not agree with this comment. The approved Pennsylvania 
program at 25 Pa. Code 89.34 requires operators to include in their 
operation plan a description of streams, including quantitative 
seasonal flow conditions. This information could be used to determine 
any adverse impacts to perennial streams due to underground mining 
activities.
Section 89.144a
    The Pennsylvania Coal Association (PCA) commented on the provisions 
of section 89.144a(a)(1) regarding an operator's relief from 
responsibility for repair or compensation for damages to structures 
when a landowner refuses access to an operator for conducting a 
premining survey. PCA contends there is no distinction between the 
requirements of the federal regulations where a landowner loses a 
rebuttable presumption of causation if access to an operator for a 
premining survey is denied and the state regulations that relieve an 
operator from repair or compensation requirements when access is 
denied. PCA states a landowner may be able to prove causation of 
subsidence damage, but that establishing the chain of causation would 
require extensive technical data and expert testimony. PCA further 
indicates that without a premining survey, there is no baseline 
information for determining an operator's liability, which is 
especially important in Pennsylvania given the extensive history of 
underground mining that makes damage from subsidence more likely than 
other states. Finally, PCA claims this portion of the program amendment 
should be approved because it is as effective as the federal 
regulations, since both the state and federal regulations are designed 
to encourage landowners to cooperate in premining surveys and to 
facilitate collection of baseline information. (Note: CONSOL, 
Pennsylvania Services Corporation, Maple Creek Mining, Inc. and UMCO 
Energy, Inc. submitted letters endorsing this and all other comments 
made by PCA).
    OSM suspended the regulations (30 CFR 817.121 (c)(4)(i) through 
(iv)) regarding a rebuttable presumption in response to a challenge by 
the National Mining Association (64 FR 71652). As a result, 30 CFR 
817.121 (c)(4)(iii), which formerly stated that landowners would lose 
the rebuttable presumption if they refused to let operators on their 
property to conduct a premining survey, is no longer valid. OSM also 
suspended the portion of 30 CFR 784.20(a)(3) that required a specific 
structural survey of all EPAct protected structures. At this time, 
there is no requirement that a structural survey be conducted or that a 
rebuttable presumption will be applied to determine if underground 
mining is responsible for subsidence damage to structures. However, the 
federal rules do require that owners of structures damaged by 
underground mining be compensated for the damages or that the damages 
be repaired by the operator. The regulations do not relieve an operator 
from the obligation of repair or compensation for damages caused by 
subsidence from underground mining. We acknowledge the difficulty of 
assessing the extent of subsidence damage without a presubsidence 
survey. But, exempting an operator from liability for repair or 
compensation for damages because a landowner does not allow access to 
the property for a premining survey does not comply with the intent of 
the EPAct provisions. As more fully discussed in our finding for 5.4(c) 
of the BMSLCA, premining damage surveys do not have to be conducted by 
an operator to be valid. The surveys can be conducted by independent 
parties hired by the landowners or even by the landowners themselves. 
This information can then be used by the regulatory authority to set 
the amount of compensation or assess the completeness of repairs. As 
stated earlier, in Pennsylvania's scenario, the homeowner would have no 
relief under BMSLCA even though he had relevant information that showed 
causation. Because the Pennsylvania program allowed relief from 
liability while the federal program does not contain a similar 
provision, we found that this provision of the Pennsylvania program is 
not as effective as the federal requirements.
Section 89.144a(a)(1)
    One commenter noted that Pennsylvania's rules allow operator's to 
be relieved of liability for damage repair or compensation if the 
operator was denied access to a landowner's property for pre- or post-
mining surveys. The commenter argued that if the homeowner or PADEP has 
credible evidence that mining caused the damage, he should not be 
punished for refusing operator surveys of his property.
    OSM agrees with the commenter. The Director is not approving this 
provision because the federal rules requiring repair or compensation 
for damage to non-commercial buildings and dwellings and related 
structures [30 CFR 812.121(c)(2)] does not provide exception for any 
reason when an operator's underground mining operation has caused 
subsidence damage.
Section 89.145a(a)(1)
    One commenter indicated that Pennsylvania's regulations require 
underground miners to take a premining survey prior to mining within a 
1,000 feet of the water supply. The commenter expressed concern because 
water supply damage could occur from mining before the 1,000-foot 
distance from a home is reached.
    OSM agrees with the commenter's concerns. The federal regulations 
at 30 CFR 784.20(a)(3) regarding presubsidence surveys require all 
drinking, domestic, or residential water supplies to be surveyed at the 
time of application. As noted in the Director's decision above, the 
Director is not approving the provision that allows for water supply 
surveys to be delayed until mining advances within 1,000 feet of a 
supply and is requiring Pennsylvania to amend its program to require 
permittees to submit the information required by 25 Pa. Code 
89.145a(1)(i)-(v) that is necessary to meet the provisions of 30 CFR 
784.20(a)(3) at the time of the application for all existing drinking, 
domestic, or residential water supplies.
Section 89.152(a)(2)
    PCA commented on subsection (2) that provides that an operator can 
seek relief from responsibility for water supply replacement or 
restoration if the contamination, diminution or interruption is due to 
underground mining activities that occurred more than three years prior 
to the onset of water supply contamination, diminution or interruption. 
PCA noted that the operator is required to affirmatively prove all of 
the elements of this defense. The Pennsylvania Environmental Quality 
Board has interpreted this defense as not arising until three years 
after the mine has closed and all reclamation is complete. PCA contends 
this time period is long enough that it should cover all water supplies 
affected by underground mining. PCA further argued that since 
Pennsylvania's program provides for a rebuttable presumption that water 
supplies have been impacted within a thirty-five degree angle of draw, 
many water supplies will be replaced without

[[Page 67058]]

any proof on the part of the landowner. Even after three years have 
elapsed, the burden remains on the mine operator to affirmatively prove 
the elements of the defense. PCA proposes that for these reasons, the 
Pennsylvania program is more effective in some regards and no less 
effective than the federal regulations.
    The Director agrees with PCA's contention that using the angle of 
draw in determining operator liability is an effective tool to assist 
regulators in requiring restoration or replacement for those supplies 
located within the angle of draw. However, the regulation could allow 
operators to be relieved from liability for replacement of some water 
supplies whether or not they are within the angle of draw, if more than 
three years elapsed after mine closing before the water supply is 
affected. When promulgating the federal regulations requiring 
replacement or restoration of water supplies, OSM indicated that even 
in cases where the landowner did not need a restored or replaced water 
supply to meet the postmining land use, the permittee would still be 
required to demonstrate the availability of a water source equivalent 
to premining quantity and quality so that the current owner or his or 
her successor could utilize the water if desired in the future (60 FR 
16727). In making this statement, OSM envisioned that water supplies 
would be available under all circumstances for both present and future 
uses. While under section 25 Pa. Code 89.152(a)(2), Pennsylvania has 
left open the possibility that some water supplies will not replaced or 
restored, the federal regulation intended restoration or replacement of 
all water supplies without exception. As more fully discussed in the 
findings for 5.2(e)(2) of BMSLCA and 25 Pa. Code 89.152(a)(2), which 
are incorporated herein, the Director has not approved section 25 Pa. 
Code 89.152(a)(2).
    Another commenter asserted that an operator does not have to 
replace a water supply if the loss occurred more than three years after 
the mining ceased and that the federal rules do not provide for this 
exemption. As stated above, OSM agrees.
Section 89.152(a)(4)
    PCA commented on the provisions of this section that provide that 
an operator will not be liable for water supply replacement if the 
claim is made more than two years after the supply has been adversely 
affected. PCA argued that in the case of the two-year statute of 
limitations, the state has adopted an appropriate limitations period 
from existing state law. The two-year period is the same as that 
provided for common law water rights claims. PCA contended that federal 
law would likely assume the same limitations period and cited 
DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 
158 (1983) in support of its position. PCA indicated that this case 
provides that in the absence of an express limitations period in 
federal law, the analogous provision from state law should be adopted. 
Because there is no statute of limitations in SMCRA or EPAct, nor is 
any apparent federal policy served by a different federal limitation 
period, PCA asserted that the two-year period of this regulation is 
appropriate.
    As discussed more fully in our finding regarding this section, we 
disagree that any statute of limitations is applicable. Additionally, 
the applicability of the two-year statute of limitations (generally 
used for torts) for water replacement has been rejected by the 
Commonwealth Court of Pennsylvania in Carlson Mining Company v. 
Department of Environmental Resources, 639 A.2d 1332, 1337 (1994). In 
Carlson, a coal company argued that Pennsylvania's funding mechanism 
for increased water operation and maintenance costs constituted damages 
under tort law. The court disagreed, stating that a ``water supply 
replacement order is not a civil action based on a tort; it is based on 
the Commonwealth's police power.'' Id. at 1337. While this case 
involved a surface coal mining operation, OSM believes that the 
rationale is applicable to underground coal mining operations since any 
operator who refuses to replace a water supply covered under the 
provisions of Act 54, would also be issued an order by Pennsylvania. 
See, 5.2(a)(3) and 5.2(b)(2) of the BMSLCA. Therefore, based on our 
findings, the Director has not approved section 89.152(a)(4).
    Another commenter contended that this section was contrary to the 
federal rules. As stated above, OSM agrees.
Section 89.152(a)(5)
    PCA commented on this provision that allows compensation to 
landowners in lieu of water supply replacement if an affected water 
supply is not replaced within three years. PCA claims this option would 
be rarely used but would give operators and landowners flexibility in 
dealing with a situation where restoration of water supplies is 
difficult. PCA proposes that Pennsylvania's regulations generally 
obligate operators to provide water replacement, but provide fair and 
reasonable provision for where circumstances make permanent restoration 
of affected water supplies impossible.
    Finally, PCA noted that the buy out provision would not alter a 
mine operator's obligation to identify the availability of an 
alternative water source.
    The Director does not agree with the comments. In the preamble to 
the federal regulations, OSM responded to a commenter with a similar 
viewpoint, i.e., that compensation be available as an option for those 
limited circumstances where an impacted supply cannot be restored (60 
FR 16733). In response, OSM stated, ``[t]he terms of the Energy Policy 
Act unequivocally require replacement. Further, OSM does not anticipate 
that underground mining operations will be unable to comply with this 
statutory mandate. For example, if the permittee is unable to restore a 
spring or aquifer, the permittee should still be able to provide water 
from an alternative source, such as a public water supply, or by 
pipeline from another location.'' The Director has not approved section 
89.152(a)(5) because it provides compensation rather than restoration 
or replacement as required by federal regulations and SMCRA.
    Another commenter stated that 25 Pa. Code 89.152(a)(5)(ii) provides 
for voluntary agreements and payments instead of replacement of a water 
supply, which is required by the federal rules. OSM agrees for the 
reasons stated above.
    PCA also commented on financial guarantees for subsidence repair. 
PCA contended that although the proposed program amendment does not 
require adjustment of the performance bond amount if subsidence causes 
damage to protected structures, bond adjustment is clearly authorized 
by Pennsylvania's primacy regulations. PCA noted that while Act 54 does 
not require adjustment of the bonds for subsidence damage, it does 
mandate use of an escrow mechanism to assure funds are available to 
mitigate damage. Operators are required to deposit funds in the escrow 
within six months if they wish to contest the repair obligations, or 
have not complied with the obligations. PCA stated that the escrow 
option guarantees the repair or compensation obligations of section 720 
of SMCRA.
    Other commenters presented the opposing view that Pennsylvania's 
current bonding system is not sufficient to assure correction of 
subsidence related damage. One commenter asserted that the longwall 
mining regulations must be strengthened to shift the balance of power 
from the coal companies to a middle ground between

[[Page 67059]]

coal operators and homeowners. The commenter discussed the disruption 
subsidence from longwall mining exacts on personal and professional 
lives and stated that the bond posted should be equal to the fair 
market value of the home.
    Two other commenters indicated that Pennsylvania has no provision 
to bond for water loss and, in practice, requires only a $10,000 bond 
for structure repair. The commenters further claimed that homeowners 
need to be assured that funds are available for complete repairs and 
for water supplies, which could mean extensive new water lines in some 
areas.
    OSM agrees with the comment regarding the federal requirement for 
submission of additional bond in the event subsidence related material 
damage occurs to protected land, structures and facilities or when 
contamination, diminution, or interruption occurs to protected water 
supplies.
    The Director has required Pennsylvania to amend its program to 
include bonding provisions as effective as those found in 30 CFR 
817.121(c)(5). Please see the Director's findings regarding section 6 
of the BMSLCA for more information.
    One commenter opined that if a coal operator lacks the means to 
post an adequate subsidence bond, then the operation should not be 
permitted.
    OSM does not agree with this comment. The federal requirements for 
posting additional bond come into play only after subsidence damage has 
occurred and ninety days have elapsed without the operator completing 
the required repair, compensation, or replacement. The ninety days can 
be extended to one year under certain circumstances. There is no 
federal requirement for operators to demonstrate that additional bonds 
can be obtained prior to subsidence occurring. Even if premining 
surveys determine that subsidence damage is likely to occur at the time 
of the application, operators will not need to increase their bond if 
the repair, compensation or replacement occurs within the allotted time 
frames.

General Public Comments

    A general comment was made regarding imminent danger. A commenter 
stated that the threat of danger rather than the manifestation of the 
damage should be sufficient to suspend operations in imminent danger 
situations.
    OSM believes the commenter's concern is addressed by section 9.1(a) 
of the BMSLCA. This section requires that if the Department determines 
and notifies a mine operator that a proposed mining technique or 
extraction ratio will result in subsidence that causes an imminent 
hazard to human safety, the technique or extraction ratio will not be 
permitted unless the mine operator, prior to mining, takes measures 
approved by the Department to eliminate the imminent hazard. The 
Director found that this section is consistent with 30 CFR 817.121(f), 
which requires the suspension of underground mining if imminent danger 
is found to inhabitants of urbanized areas, cities, towns or 
communities.
    A commenter also indicated that OSM should require Pennsylvania to 
mandate that the protection of 522(e)(5) of SMCRA, regarding 
prohibiting mining within 300 feet of an occupied dwelling unless 
waived by the owner, should be applied to underground mining.
    On December 17, 1999, OSM published a rule in the Federal Register 
(64 FR 70838) in which we stated that we interpret sections 522(e) and 
701(28) of SMCRA and the implementing rules to provide that subsidence 
due to underground mining is not a surface coal mining operation. 
Subsidence, therefore, is not prohibited in areas protected under the 
Act. Neither subsurface activities that may result in subsidence, nor 
actual subsidence, are prohibited on lands protected by section 522(e).
    During the public hearing several commenters expressed 
dissatisfaction with the longwall mining process in general because of 
the damage subsidence causes to homes and water supplies. The Director 
notes that one of the purposes of SMCRA as stated at section 102(k) is 
to ``encourage the full utilization of coal resources through the 
development and application of underground extraction technologies.'' 
The longwall mining process has been proven to be an efficient way to 
insure the full utilization of coal resources. While damage to 
structures and water supplies is a regrettable consequence of longwall 
mining, the Energy Policy Act of 1992 was passed to insure that 
compensation for, or repair of, damages to structures and replacement 
of adversely affected water supplies was made. The Director finds that 
longwall mining is permissible under SMCRA but that operators have an 
obligation, as noted under the federal regulations, to minimize damage 
and to repair or compensate landowners for damages that occur.
    Two commenters voiced concerns about protection of utilities. One 
of the commenters alleged that underground mining destroys natural gas 
wells. The Director has specified that the federal regulations at 30 
CFR 817.180 require all underground mining activities to be conducted 
in a manner that minimizes damage, destruction or disruption of 
services provided by oil, gas, and water wells, as well as additional 
utility installations, unless the owner of the utility and the 
regulatory authority approve otherwise. This regulation was not 
modified by the passage of EPAct. Thus, impacts to gas wells are 
allowed if approved by the regulatory authority and the well's owner.
    The second commenter noted that a ruling made by Pennsylvania's 
Environmental Hearing Board concluded that mere notification of intent 
to longwall mine beneath a public utility installation is insufficient 
to prevent damage to that installation. The commenter further noted 
that the standard requiring prevention of damage to a public utility 
was based on section 4 of the BMSLCA (52 P.S. 1406.4) that has since 
been repealed, but that Pennsylvania's Environmental Quality Board 
changed the word ``prevent'' to ``minimize'' without public input.
    In our review of section 4 of the BMSLCA we found that, prior to 
its repeal, it provided protection from subsidence to municipal 
utilities or municipal public service operations (and other structures) 
in place on April 27, 1966. The Director is approving the repeal of 
section 4 because the federal regulations do not contain any provisions 
for protection of structures and utilities in place as of April 27, 
1966.

V. Director's Decision

    Based on the findings above we are approving the amendments to the 
Pennsylvania program, except as noted below.

BMSLCA

    Section 5(b) (52 P.S. 1406.5(b)) is required to be amended to 
change the reference to section 6(a) to section 6(b).
    Section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) is required to be amended 
to require the prompt replacement of all water supplies.
    Section 5.1(b) (52 P.S. 1406.5a(b)) is not approved.
    At section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) the phrase, ``* * * 
where the contamination, diminution or interruption does not abate 
within three years of the date on which the supply was adversely 
affected'' is not approved. Additionally this section is approved to 
the extent that Pennsylvania recognizes that the approved program 
regarding response to citizen complaints may

[[Page 67060]]

require a more timely response to complaints than that required by this 
section.
    At section 5.2(d) (52 P.S. 1406.5b(d)) the sentence stating, 
``Wherever a mine operator, upon request, has been denied access to 
conduct a premining survey and the mine operator thereafter served 
notice upon the landowner by certified mail or personal service, which 
notice identified the rights established by sections 5.1 and 5.3 and 
this section, was denied access and the landowner failed to provide or 
authorize access within ten days after receipt thereof, then such 
affirmative proof shall include premining baseline data, provided by 
the landowner or the department, relative to the affected water 
supply,'' is not approved.
    Section 5.2(e)(2) (52 P.S. 1406.5b(e)(2)) is not approved.
    Section 5.2(g) (52 P.S. 1406.5b(g)) is not approved.
    Section 5.2(h) (52 P.S. 1406.5b(h)) is not approved.
    At section 5.2(i) (52 P.S. 1406.5b(i)) the phrase ``and of 
reasonable cost'' is not approved.
    Section 5.3(a) (52 P.S. 1406.5c(a)) is approved to the extent that 
agreements to replace a water supply or provide an alternative water 
supply meet the requirements established in the federal definition of 
``replacement of water supply'' found at 30 CFR 701.5. This provision 
is not approved to the extent it allows compensation in lieu of 
restoration or replacement of affected water supplies.
    Section 5.3(b) (52 P.S. 1406.5c(b)) is not approved to the extent 
that section 5.3(a) (52 P.S. 1406.5c(a)) is not approved.
    Section 5.3(c) (52 P.S. 1406.5c(c)) is not approved to the extent 
any state law negates or provides less protection than EPAct.
    Section 5.4(a) (52 P.S. 1406.5d) must be amended to require the 
prompt repair and compensation for the structures protected under 
section 720(a)(1) of SMCRA and 30 CFR 817.121(c)(2).
    At section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) the phrase, ``in place 
on the effective date of this section or on the date of first 
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the 
boundary of the entire mine as depicted in said application'' is not 
approved.
    Section 5.4(c) (52 P.S. 1406.5d(c)) is not approved.
    Section 5.5(a) (52 P.S. 1406.5e(a)) is required to be amended to 
make it clear that operators are responsible for repair or compensation 
to landowners of structures damaged by subsidence from underground 
mining operations.
    Section 5.5(b) (52 P.S. 1406.5e(b)) is not approved.
    Section 5.5(c) (52 P.S. 1406.5e(c)) is approved to the extent that 
Pennsylvania recognizes the approved program regarding response to 
citizen complaints may require a more timely response to complaints 
than that required by this section. Additionally, the portion of 5.5(c) 
that states, ``* * * within six months or a longer period if the 
department finds that the occurrence of subsidence or subsequent damage 
may occur to the same building as a result of mining,'' is not 
approved. Finally, this section is required to be amended to insure 
that any written damage determinations made by PADEP will take into 
account subsidence due to underground coal mining operations, as 
required by SMCRA.
    At section 5.5(f) (52 P.S. 1406.5e(f)) the phrase, ``* * * within 
six months or longer or such period as the department has established 
or fail to perfect an appeal of the department's order directing such 
repair or compensation'' is not approved.
    At section 5.6(c) (52 P.S. 1406.5f(c)) the following two sentences 
are not approved: ``Nothing herein shall impair agreements entered into 
after April 27, 1966, and prior to the effective date of this section, 
which, for valid consideration, provide for a waiver or release of any 
duty to repair or compensate for subsidence damage. Any such waiver or 
release shall only be valid with respect to damage resulting from the 
mining activity contemplated by such agreement.''
    Section 5.6(d) (52 P.S. 1406.5f(d)) is not approved to the extent 
that section 5.6(c) is not approved.
    Section 6 (52 P.S. 1406.6) must be amended to comply with the 
provisions of 30 CFR 817.121(c)(5), which requires a permittee to 
obtain additional performance bond when subsidence related material 
damage to land or structures occurs, or when a protected water supply 
is contaminated, diminished or interrupted. The additional bond must be 
in the amount of the estimated repairs or in the amount of the decrease 
in value of a protected structure or in the amount of the estimated 
cost to replace a protected water supply if the repair, compensation or 
replacement takes longer than 90 days.

The Regulations at 25 Pa. Code Chapter 89

    In section 89.5, the definition of ``de minimis cost increase'' is 
not approved.
    In section 89.5, the definition of ``fair market value'' is not 
approved.
    In section 89.5, the phrase ``securely attached to the land 
surface'' in the definition of ``permanently affixed appurtenant 
structures'' is not approved.
    Section 89.141(d)(3) is to be amended to require subsidence control 
plans to provide a description of the measures to be taken to ensure 
subsidence will not cause material damage to, or reduce the reasonably 
foreseeable uses of, all the structures or features protected under 30 
CFR 784.20(b)(5).
    Section 89.141(d)(6) is to be amended to insure the requirements of 
30 CFR 784.20(b)(5) and (b)(7) are met when occupied residential 
dwellings and structures related thereto and community or institutional 
buildings are not protected by 25 Pa. Code 89.141(d)(3) and they are 
materially but not irreparably damaged.
    Section 89.142a(c)(3) is to be amended to insure that Pennsylvania 
has the discretion to suspend mining in cases where the initial 
subsidence control plan or the operator's actions fail to prevent 
material damage, until the operator's subsidence control plan ensures 
the prevention of further material damage, as required in 30 CFR 
817.121(e).
    Section 89.142a(d) is required to be amended to insure the 
prevention or minimization of material damage to occupied residential 
dwellings and community or institutional buildings.
    Section 89.142a(f)(1) is required to be amended to be no less 
effective than 30 CFR 817.121(c) in requiring prompt repair or 
compensation to landowners.
    In section 89.142a(f)(1)(iii), the portion of the amendment that 
states, ``* * * or on the date of first publication of the application 
for a coal mining activity permit or a 5-year renewal thereof for the 
operations in question and within the boundary of the entire mine as 
depicted in the application'' is not approved.
    Section 89.142a(g)(1) is required to be amended to require all 
underground mining activities to be conducted in a manner consistent 
with 30 CFR 817.180.
    In section 89.143a(c), the portion that states, ``* * * within 6 
months of the date that the building owner sent the operator 
notification of subsidence damage to the structure * * *'' is not 
approved. Additionally, the phrase, ``within 2 years of the date damage 
to the structure occurred * * *'' is also not approved.
    In section 89.143a(d)(3), the portion which states, ``* * * within 
6 months of the date of issuance of the order. The Department may allow 
more than 6

[[Page 67061]]

months if the Department finds that further damage may occur to the 
same structure as a result of additional subsidence'' is not approved.
    Section 89.144a(a)(1) is not approved.
    Section 89.145a(a)(1) is required to be amended to include 
provision that the survey information that need only be acquired to the 
extent that it can be collected without extraordinary efforts or 
expenditures of excessive sums of money, is only applicable when it 
applies to inconveniencing landowners. The amendment must remove the 
provision that allows for water supply surveys to be delayed until 
mining advances within 1000 feet of a supply. Finally, this section 
must also be amended to require permittees to submit the information 
required by 25 Pa. Code 89.145a(a)(1)(i)-(vi) that is necessary to meet 
the provisions of 30 CFR 784.20(a)(3) at the time of the application 
for all existing drinking, domestic, or residential water supplies.
    Section 89.145a(b) is required to be amended to be no less 
effective than 30 CFR 817.41(j) in requiring prompt replacement or 
restoration of water supplies. Additionally section 89.145a(b) is 
required to be amended, if necessary, to ensure that the phrase 
``satisfy the water user's needs and the demands of any reasonably 
foreseeable uses'' is consistent with the actual use and the reasonably 
foreseeable use of the supply, regardless of whether the current owner 
has demonstrated plans for the use.
    Section 89.145a(e)(1) is required to be amended to assure the 
prompt supply of temporary water to all landowners whose water supply 
has been impacted by underground mining, regardless of whether the 
water supply is within the area of presumptive liability.
    Section 89.145a(e)(2) is required to be amended to require the 
restoration of water quantity in temporary water supplies to the same 
level as permanent water supplies, as noted in 25 Pa. Code 
89.145a(f)(3).
    Section 89.145a(f)(1)(v) is not approved to the extent that it 
passes de minimis cost increases for operation and maintenance of water 
supplies to landowners.
    Sections 89.145a(f)(3)(i) and (ii) are required to be amended, if 
necessary, to ensure that the phrase ``satisfy the water user's needs 
and the demands of any reasonably foreseeable uses'' is consistent with 
the actual use and the reasonably foreseeable uses.
    Section 89.146a(c) is approved to the extent that it is consistent 
with, or more timely than, the citizen complaint procedures. However, 
Pennsylvania is required to amend its program to the extent the time 
frames are longer than the citizen complaint procedures.
    Section 89.152(a)(2) is not approved.
    Section 89.152(a)(4) is not approved
    Section 89.152(a)(5)(i) is not approved.
    Section 89.152(a)(5)(ii) is approved to the extent that the 
agreement to replace a water supply or provide an alternative water 
supply meets the requirements established in the federal definition of 
``replacement of water supply'' found at 30 CFR 701.5. This section is 
not approved for agreements that provide for replacement of or an 
alternate supply of water to the extent that water supply will not meet 
the requirements of the federal definition. This section is also not 
approved to the extent that it allows compensation in lieu of 
restoration or replacement of affected water supplies.
    Sections 89.141(d), 89.141(d)(9), 89.142a(a), 89.142a(f)(1), 
89.142a(f)(2)(i), 89.142a(h)(1), 89.142a(h)(2), 89.142a(i)(1), 
89.143a(a), 89.143a(d)(1), 89.143a(d)(2), 89.143a(d)(3), 89.155(b)(1) 
and (2), and 89.155(c) are required to be amended to be no less 
stringent than section 720(a) of SMCRA with regard to the definition of 
underground mining operations.
    We find that good cause exists under 5 U.S.C. 553(d)(3) to make 
this final rule effective immediately. Section 503(a) of SMCRA requires 
that the state's program demonstrates that the state has the capability 
of carrying out the provisions of the Act and meeting its purposes. 
Making this regulation effectively immediately will expedite that 
process. Additionally, 30 CFR 732.17(h)(12) requires decisions 
approving or disapproving program amendments to be published in the 
Federal Register and ``* * * shall be effective upon publication unless 
the notice specifies a different effective date.''

VI. Effect of Director's Decision

    Since July 28, 1995, enforcement of EPAct requirements in 
Pennsylvania has occurred under 30 CFR 843.25(a)(4) with a combination 
of state enforcement and direct federal enforcement. This portion of 
the notice explains how the Director's decision on the proposed 
amendment affects the regulation of underground mining impacts in 
Pennsylvania.
    Section 2504 of EPAct added section 720 to SMCRA. Section 720(a)(1) 
required prompt repair or compensation for material damage to non-
commercial buildings and occupied residential dwellings and related 
structures as a result of subsidence due to underground coal mining 
operations, and section 720(a)(2) required prompt replacement of 
certain identified water supplies adversely affected by underground 
coal mining operations. Section 720 also required that these 
protections be in place immediately for all underground coal mining 
operations conducted after October 24, 1992.
    To implement the water supply replacement and structure damage 
repair requirements, OSM solicited comments in a March 31, 1995, 
Federal Register notice (60 FR 16750-16751), and on July 28, 1995, OSM 
decided that initial enforcement of EPAct requirements in Pennsylvania 
under 30 CFR 843.25(a)(4) would be accomplished through a combination 
of state and OSM enforcement (60 FR 38685-38689). Under the initial 
enforcement process, Pennsylvania agreed to investigate all subsidence-
related complaints and take remedial action. Pennsylvania advised that 
it would defer to OSM in those situations where the federal rules 
provide greater relief for the complainant under 817.41(j), and 
817.121(c)(2). Finally, under 30 CFR 843.25(b)(3), direct federal 
enforcement is to remain in effect in states with approved regulatory 
programs until OSM approves, under Part 732, provisions consistent with 
sections 817.41(j) and 817.121(c)(2).
    Water Supply Replacement: As discussed in this notice, the Director 
is approving provisions that are no less effective than EPAct, and 
several provisions that extend protection beyond the counterpart 
federal standards. Extended coverage includes a rebuttable presumption 
for temporary water supplies and protection of agricultural water 
supplies. However, the Director is not approving several provisions 
affording less protection than the minimum level required under EPAct. 
These include provisions that allowed the operator to provide 
compensation to landowners in lieu of water supply replacement if the 
water supply is not restored or replaced within three years, time 
limits on the filing of claims for affected water supplies, and a 
provision that allowed up to three years to pass before an order for a 
permanent alternate water supply must be issued. Finally, the Director 
has required a number of amendments to the Pennsylvania program. The 
required amendments include the provision of prompt replacement of all 
adversely affected supplies, and that water supply surveys of existing 
supplies be submitted at the time of the permit application.
    The Director's decision will result in continued case-by-case 
direct federal enforcement in Pennsylvania to carry out the 
requirements of 30 CFR 817.41(j)

[[Page 67062]]

with respect to water supply replacement provisions. For example, while 
Pennsylvania's provisions require prompt temporary replacement of an 
adversely affected supply within the rebuttable presumption zone, the 
provisions do not address prompt temporary or permanent water supply 
replacement under any other circumstances. While the Director has 
required Pennsylvania to submit an amendment to address this issue, the 
water supply replacement provisions of 30 CFR 817.41(j) will continue 
to be implemented by PADEP to the extent of its authority and 
supplemented by direct federal enforcement, as needed on a case-by-case 
basis to assure prompt replacement of affected supplies. For those 
water replacement related provisions that are now part of the approved 
program, OSM will monitor state performance and enforcement though the 
normal oversight process.
    Structure Repair and Compensation: As discussed in this notice, the 
Director is approving provisions that are no less effective than EPAct, 
and several provisions extending greater protection than the minimum 
federal standards. These include structure compensation provisions that 
provide for reimbursement based upon the cost to repair or replace, 
reimbursement of associated temporary relocation costs, repair or 
compensation for certain agricultural structures, and an irreparable 
damage standard requiring permission of the property owner to proceed 
with the subsidence related activities. However, the Director is not 
approving proposed provisions resulting in less protection than that 
afforded under EPAct. These include the denial of subsidence repair and 
compensation based upon the refusal of access for pre-subsidence 
surveys, time limits on the filing of claims for subsidence damage, and 
a provision that would prevent PADEP from issuing orders requiring 
repair and compensation until six months after a property owner had 
notified the permittee of subsidence damage. Finally, the Director has 
required a number of amendments to the Pennsylvania program, including 
the provision of prompt repair and compensation for occupied dwellings 
and non-commercial buildings and the development of subsidence damage 
bonding requirements consistent with the federal standards.
    The Director's decision will result in continued case-by-case 
direct federal enforcement in Pennsylvania to carry out the 
requirements of 30 CFR 817.121(c)(2) with respect to structure repair 
and/or compensation. For example, Pennsylvania's proposed amendment did 
not require prompt repair and compensation for all structures covered 
under EPAct, did not cover all underground operations, did not cover 
certain related structures, and placed conditions on property owners 
that could limit structure repair and/or compensation to levels below 
the minimum federal standards. The Director has not approved certain of 
these provisions and required Pennsylvania to submit amendments to 
address the aforementioned and other issues. Until such time as the 
required amendments are approved, the provisions of 30 CFR 
817.121(c)(2) will continue to be implemented by PADEP through state 
provisions supplemented by direct federal enforcement, as needed on a 
case-by-case basis to assure prompt repair of, and or compensation for, 
all covered structures. For those structure damage-related provisions 
that are now part of the approved program, OSM will monitor state 
performance and enforcement though the normal oversight process.
    Finally, Section 503 of SMCRA provides that a state may not 
exercise jurisdiction under SMCRA unless the state program is approved 
by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change 
of an approved state program be submitted to OSM for review as a 
program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit 
any changes to approved state programs that are not approved by OSM. In 
the oversight of the Pennsylvania program, we will recognize only the 
statutes, regulations and other materials we have approved, together 
with any consistent implementing policies, directives and other 
materials. We will require Pennsylvania to enforce only approved 
provisions.

VII. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of state regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific state, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed state regulatory programs and program amendments 
submitted by the states must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866, and because it is not expected to have a 
significant adverse effect on the supply, distribution, or use of 
energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed state regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the

[[Page 67063]]

National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The state submittal, which is the subject of this rule, is based upon 
counterpart federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart federal regulation.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, federal, state, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the state 
submittal, which is the subject of this rule, is based upon counterpart 
federal regulations for which an analysis was prepared and a 
determination made that the federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on state, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the state 
submittal, which is the subject of this rule, is based upon counterpart 
federal regulations for which an analysis was prepared and a 
determination made that the federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: June 29, 2001.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, chapter VII, 
subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 938--PENNSYLVANIA

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

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


    2-3. Section 938.12 is added to read as follows:


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

    (a) We are not approving the following provisions or portions of 
provisions of the proposed program amendment that Pennsylvania 
submitted on July 29, 1998:
    (1) Section 5.1(b) (52 P.S. 1406.5a(b)) of the BMSLCA.
    (2) At section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) of the BMSLCA, the 
phrase, ``* * * where the contamination, diminution or interruption 
does not abate within three years of the date on which the supply was 
adversely affected.''
    (3) At section 5.2(d) (52 P.S. 1406.5b(d)) of the BMSLCA the 
phrase, ``Wherever a mine operator, upon request, has been denied 
access to conduct a premining survey and the mine operator thereafter 
served notice upon the landowner by certified mail or personal service, 
which notice identified the rights established by sections 5.1 and 5.3 
and this section, was denied access and the landowner failed to provide 
or authorize access within ten days after receipt thereof, then such 
affirmative proof shall include premining baseline data, provided by 
the landowner or the department, relative to the affected water 
supply.''
    (4) Section 5.2(e)(2) (52 P.S. 1406.5b(e)(2)) of the BMSLCA.
    (5) Section 5.2(g) (52 P.S. 1406.5b(g)) of the BMSLCA.
    (6) Section 5.2(h) (52 P.S. 1406.5b(h)) of the BMSLCA.
    (7) At section 5.2(i) (52 P.S. 1406.5b(i)) of the BMSLCA the 
phrase, ``and of reasonable cost.''
    (8) The portion of section 5.3(a) (52 P.S. 1406.5c(a)) of the 
BMSLCA that allows agreements for water replacement that do not fully 
comply with federal requirements for restoration or replacement of 
water supplies. Additionally, the portion of section 5.3(a) (52 P.S. 
1406.5c(b)) that allows compensation in lieu of restoration or 
replacement of affected water supplies.
    (9) Section 5.3(b) (52 P.S. 1406.5c(b)) of the BMSLCA is not 
approved to the extent that section 5.3(a) (52 P.S. 1406.5c(a)) is not 
approved.
    (10) Section 5.3(c) (52 P.S. 1406.5c(c)) of the BMSLCA is not 
approved to the extent any state law negates or provides less 
protection than EPAct.
    (11) At section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) the phrase, ``in 
place on the effective date of this section or on the date of first 
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the 
boundary of the entire mine as depicted in said application.''
    (12) Section 5.4(c) (52 P.S. 1406.5d(c)) of the BMSLCA.
    (13) Section 5.5(b) (52 P.S. 1406.5e(b)) of the BMSLCA.
    (14) At section 5.5(c) (52 P.S. 1406.5e(c)) of the BMSLCA, the 
phrase, ``* * * within six months or a longer period if the department 
finds that the occurrence of subsidence or subsequent damage may occur 
to the same building as a result of mining.''
    (15) At section 5.5(f) (52 P.S. 1406.5e(f)) of the BMSLCA, the 
phrase, ``* * * within six months or longer or such period as the 
department has established or fail to perfect an appeal of the 
department's order directing such repair or compensation.''
    (16) At section 5.6(c) (52 P.S. 1406.5f(c)) of the BMSLCA, the 
following two sentences: ``Nothing herein shall impair agreements 
entered into after April 27, 1966, and prior to the effective date of 
this section, which, for valid consideration, provide for a waiver or 
release of any duty to repair or compensate for subsidence damage. Any 
such waiver or release shall only be valid with respect to damage 
resulting from the mining activity contemplated by such agreement.''
    (17) Section 5.6(d) (52 P.S. 1406.5f(d)) of the BMSLCA is not 
approved to the extent that section 5.6(c) has not been approved.
    (18) At 25 Pa. Code 89.5, the definition of ``de minimis cost 
increase.''
    (19) At 25 Pa. Code 89.5, the definition of ``fair market value.''
    (20) At 25 Pa. Code 89.5, the phrase ``securely attached to the 
land surface''

[[Page 67064]]

in the definition of ``permanently affixed appurtenant structures.''
    (21) 25 Pa. Code 89.142a(f)(1)(iii) the portion of the amendment 
that states, ``* * * or on the date of first publication of the 
application for a coal mining activity permit or a 5-year renewal 
thereof for the operations in question and within the boundary of the 
entire mine as depicted in the application.''
    (22) At 25 Pa. Code 89.143a(c) the portion which states, ``* * * 
within 6 months of the date that the building owner sent the operator 
notification of subsidence damage to the structure * * *'' and the 
portion which states, ``within 2 years of the date damage to the 
structure occurred.''
    (23) At 25 Pa. Code 89.143a(d)(3), the portion of the amendment 
that states, ``* * * within 6 months of the date of issuance of the 
order. The Department may allow more than 6 months if the Department 
finds that further damage may occur to the same structure as a result 
of additional subsidence.''
    (24) 25 Pa. Code 89.144a(a)(1).
    (25) The portion of 25 Pa. Code 89.145a(a)(1) that allows for water 
supply surveys to be delayed until mining advances within 1,000 feet of 
a supply.
    (26) The portion of 25 Pa. Code 89.145a(f)(1)(v) that passes de 
minimis cost increases for operation and maintenance of water supplies 
to landowners.
    (27) 25 Pa. Code 89.152(a)(2).
    (28) 25 Pa. Code 89.152(a)(4).
    (29) 25 Pa. Code 89.152(a)(5)(i).
    (30) 25 Pa. Code 89.152(a)(5)(ii) is not approved for agreements 
that provide for replacement of an alternate supply of water to the 
extent that the water supply will not meet the federal definition of 
replacement of water supply. The section is also not approved to the 
extent it allows compensation in lieu of restoration or replacement of 
affected water supplies.
    (b) [Reserved]

    4. Section 938.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
Original amendment submission date       Date of final publication                Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
July 29, 1998.....................  December 27, 2001.................  Bituminous Mine Subsidence and Land 2001
                                                                         Conservation Act: Repeal of Section 4
                                                                         (52 P.S. 1406.4); 5(b)(partial
                                                                         approval); 5.1(a)(1) (52 P.S.
                                                                         1406.5a(a)(1) (conditional approval);
                                                                         5.1(a)(2) and (3) (52 P.S.
                                                                         1406.5a(a)(2) and (3)); 5.2(a)(1), (2),
                                                                         and (3) (52 P.S. 1406.5b(a)(1), (2),
                                                                         and (3)); 5.2(b)(1) (52 P.S.
                                                                         1406.5b(b)(1)); 5.2(c) (52 P.S.
                                                                         1406.5b(c)); 5.2(e)(1) and (3) (52 P.S.
                                                                         1406.5b(e)(1) and (3)); 5.2(f) (52 P.S.
                                                                         1406.5b (f); 5.2(j) (52 P.S.
                                                                         1406.5b(j)); 5.2(k) (52 P.S.
                                                                         1406.5b(k)); 5.4(a) (52 P.S.
                                                                         1406.5d(a))(partial approval);
                                                                         5.4(a)(1), (2) and (4) (52 P.S.
                                                                         1406.5d(a)(1), (2) and (4)); 5.4(b) (52
                                                                         P.S. 1406.5d(b)); 5.5(a) (52 P.S.
                                                                         1406.5e(a))(partial approval); 5.5 (d),
                                                                         (e), and (g) (52 P.S. 1406.5e(d), (e)
                                                                         and (g)); 5.6(a) and (b) (52 P.S.
                                                                         1406.5f(a) and (b)); 6 (52 P.S.
                                                                         1406.6))(partial approval); 9.1(a),
                                                                         (b), (c), and (d) (52 P.S. 1406.9a(a),
                                                                         (b), (c), and (d); Repeal of Section 15
                                                                         (52 P.S. 1406.15); 17.1 (52 P.S.
                                                                         1406.17a); 18.1 (52 P.S. 1406.18a)
                                                                        25 Pa. Code Section: 89.5, the
                                                                         definitions of the following terms:
                                                                         ``dwelling,'' ``irreparable damage,''
                                                                         ``material damage,'' ``noncommercial
                                                                         building,'' ``public buildings and
                                                                         facilities,'' ``public water supply
                                                                         system,'' ``rebuttable presumption
                                                                         area,'' ``underground mining,''
                                                                         ``underground mining operations,'' and
                                                                         ``water supply;'' 89.33; 89.34; 89.35;
                                                                         89.36; 89.141(a); 89.141(d)(2), (4),
                                                                         (5), (7), (8), (10) and (11);
                                                                         89.141(d), (d)(3), (6), and (9)(partial
                                                                         approval); deletion of 89.142;
                                                                         89.142a(a) (partial approval)
                                                                         89.142a(a)(1), (2), (3) and (4);
                                                                         89.142a(b); 89.142a(c)(1) and (2)(i) ``
                                                                         (v); 89.142a(c)(3) (partial approval);
                                                                         89.142a(d) (partial approval);
                                                                         89.142a(e); 89.142a(f)(1) (partial
                                                                         approval); 89.142a(f)(1)(i), (ii),
                                                                         (iv), and (v); 89.142a(f)(2)(i)
                                                                         (partial approval); 89.142a(g)(1)
                                                                         (partial approval); 89.142a(g)(2), and
                                                                         (3); 89.142a(h) (1) and (2) (partial
                                                                         approval); 89.142a(i)(1) (partial
                                                                         approval); 89.142a)(i)(2), (j), (k),
                                                                         and (l); deletion of 89.143; 89.143a(a)
                                                                         (partial approval); 89.143a(b);
                                                                         89.143a(d)(1) and (2) (partial
                                                                         approval);deletion of 89.144;
                                                                         89.144a(a)(2), and (3); deletion of
                                                                         89.145; 89.145a(a)(1)(i)-(vi);
                                                                         89.145a(a)(2) and (3);
                                                                         89.145a(b)(partial approval);
                                                                         89.145a(c); 89.145a(d); 89.145a(e)(1)
                                                                         and (2) (partial approval);
                                                                         89.145a(f)(1)(i)-(iv); 89.145a(f)(2);
                                                                         89.145a(f)(3)(i) and (ii)(partial
                                                                         approval); 89.145a(f)(3)(iii);
                                                                         89.145a(f)(4); 89.146a(a) and (b);
                                                                         89.146a(c) (partial approval);
                                                                         89.152(a)(1) and (3); 89.152(b); 89.153
                                                                         (a), (b), and (c); 89.154(a) through
                                                                         (d); 89.155(a), 89.155(b)(1) and (2)
                                                                         (partial approval); 89.155(b)(3) and
                                                                         (4); 89.155(c) (partial approval).
----------------------------------------------------------------------------------------------------------------


    4. Section 938.16 is amended by adding paragraphs (hhhh) through 
(bbbbbb) to read as follows:


Sec. 938.16  Required regulatory program amendments.

* * * * *
    (hhhh) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend section 5(b) of the 
BMSLCA (52 P.S. 1406.5(b)) to delete the reference to section 6(a) of 
the BMSLCA and replace it with a reference to 6(b) of the BMSLCA.
    (iiii) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend section 5.1(a)(1) of 
the BMSLCA (52 P.S. 1406.5a(a)(1)) to require the prompt replacement of 
all water supplies.
    (jjjj) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove section 5.1(b) of the 
BMSLCA (52 P.S. 1406.5a(b)).

[[Page 67065]]

    (kkkk) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to delete the phrase, ``* * * 
where the contamination, diminution or interruption does not abate 
within three years of the date on which the supply was adversely 
affected'' from section 5.2(b)(2) of the BMSLCA (52 P.S. 
1406.5b(b)(2)).
    (llll) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to delete the phrase, ``Wherever 
a mine operator, upon request, has been denied access to conduct a 
premining survey and the mine operator thereafter served notice upon 
the landowner by certified mail or personal service, which notice 
identified the rights established by sections 5.1 and 5.3 and this 
section, was denied access and the landowner failed to provide or 
authorize access within ten days after receipt thereof, then such 
affirmative proof shall include premining baseline data, provided by 
the landowner or the department, relative to the affected water 
supply.'' from section 5.2(d) of the BMSLCA (52 P.S. 1406.5b(d)).
    (mmmm) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove section 5.2(e)(2) of 
the BMSLCA (52 P.S. 1406.5b(e)(2)).
    (nnnn) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove section 5.2(g) of the 
BMSLCA (52 P.S. 1406.5b(g)).
    (oooo) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove section 5.2(h) of the 
BMSLCA (52 P.S. 1406.5b(h)).
    (pppp) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the phrase, ``and of 
reasonable cost'' from section 5.2(i) of the BMSLCA (52 P.S. 
1406.5b(i)).
    (qqqq) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to make it clear in section 
5.3(a) (52 P.S. 1406.5c(a)) that agreements to replace a water supply 
or provide an alternative water supply must meet the requirements 
established in the definition of ``replacement of water supply'' at 30 
CFR 701.5 and that compensation in lieu of restoration or replacement 
of affected water supplies is prohibited.
    (rrrr) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to insure the provisions of 
section 5.3(b) of the BMSLCA (52 P.S. 1406.5c(b)) reflect the 
Director's decision on section 5.3(a) (52 P.S. 1406.5c(a)).
    (ssss) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to make it clear that section 
5.3(c) of the BMSLCA (52 P.S. 1406.5c(c)) cannot negate or provide less 
protection than EPAct.
    (tttt) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend section 5.4 of the 
BMSLCA (52 P.S. 1406.5d) to require the prompt repair and compensation 
for structures protected under section 720(a)(1) of SMCRA and 30 CFR 
817.121(c)(2).
    (uuuu) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend section 5.4(a)(3) of 
the BMSLCA (52 P.S. 1406.5d(a)(3)) to remove the phrase, ``in place on 
the effective date of this section or on the date of first publication 
of the application for a Mine Activity Permit or a five-year renewal 
thereof for the operations in question and within the boundary of the 
entire mine as depicted in said application.''
    (vvvv) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove section 5.4(c) of the 
BMSLCA (52 P.S. 1406.5d(c)).
    (wwww) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend section 5.5(a) of the 
BMSLCA (52 P.S. 1406.5e(a)) to make it clear that operators are 
responsible for repair or compensation to landowners of structures 
damaged by subsidence from underground mining operations.
    (xxxx) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove section 5.5(b) of the 
BMSLCA (52 P.S. 1406.5e(b)).
    (yyyy) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the following phrase 
from section 5.5(c) of the BMSLCA (52 P.S. 1406.5e(c)), ``* * * within 
six months or a longer period if the department finds that the 
occurrence of subsidence or subsequent damage may occur to the same 
building as a result of mining.'' Pennsylvania must also amend section 
5.5(c) to insure that written damage determinations made by PADEP will 
take into account subsidence due to underground coal mining operations 
as required by SMCRA. Finally, Pennsylvania must also amend section 
5.5(c) of the BMSLCA to insure the timeframes for investigation of 
claims of subsidence damage are consistent with citizen complaint 
procedures.
    (zzzz) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the following phrase 
from section 5.5(f) of the BMSLCA (52 P.S. 1406.5e(f)), ``* * * within 
six months or longer or such period as the department has established 
or fail to perfect an appeal of the department's order directing such 
repair or compensation.''
    (aaaaa) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the following two 
sentences from section 5.6(c) of the BMSLCA (52 P.S. 1406.5f(c)): 
``Nothing herein shall impair agreements entered into after April 27, 
1966, and prior to the effective date of this section, which, for valid 
consideration, provide for a waiver or release of any duty to repair or 
compensate for subsidence damage. Any such waiver or release shall only 
be valid with respect to damage resulting from the mining activity 
contemplated by such agreement.''
    (bbbbb) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to insure the provisions of 
section 5.6(d) of the BMSLCA (52 P.S. 1406.5f(d)) reflect the 
Director's decision on not approving

[[Page 67066]]

language in section 5.6(c) of the BMSLCA (52 P.S. 1406.5f(c)).
    (ccccc) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend section 6 of the BMSLCA 
(52 P.S. 1406.6) to comply with the provisions of 30 CFR 817.121(c)(5) 
regarding when, and under what circumstances, the regulatory authority 
must require permittees to obtain additional performance bond and the 
amount of such bond.
    (ddddd) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the definition of ``de 
minimis cost increase,'' from 25 Pa. Code 89.5.
    (eeeee) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the definition of 
``fair market value,'' from 25 Pa. Code 89.5.
    (fffff) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the phrase ``securely 
attached to the land surface'' in the definition of ``permanently 
affixed appurtenant structures'' at 25 Pa. Code 89.5.
    (ggggg) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 
89.141(d)(3) to provide the protections of 30 CFR 784.20(b)(5).
    (hhhhh) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 
89.141(d)(6) to insure the requirements of 30 CFR 784.20(b)(5) and 
(b)(7) are met when occupied residential dwellings and structures 
related thereto and community or institutional buildings are not 
protected by 25 Pa. Code 89.141(d)(3) and they are materially damaged 
but not irreparably damaged.
    (iiiii) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption amend 25 Pa. Code 89.142a(c)(3) 
to make it as effective as 30 CFR 817.121(e), which imposes on the 
regulatory authority the obligation to require permittees to modify 
subsidence control plans to ensure the prevention of further material 
damage in the cases where the initial plan or operator's actions fail 
and as effective as 30 CFR 817.121(e) in providing the authority to 
suspend mining until such a plan is approved.
    (jjjjj) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 89.142a(d) 
to insure the prevention or minimization of material damage to occupied 
residential dwellings and community or institutional buildings.
    (kkkkk) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 
89.142a(f)(1) to secure prompt repair or compensation to landowners.
    (lllll) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the phrase from 25 Pa. 
Code 89.142a(f)(1)(iii), which states, ``* * * or on the date of first 
publication of the application for a coal mining activity permit or a 
5-year renewal thereof for the operations in question and within the 
boundary of the entire mine as depicted in the application.''
    (mmmmm) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable to amend 25 Pa. Code 89.142a(g)(1) to require 
all underground mining activities be conducted in a manner consistent 
with 30 CFR 817.180.
    (nnnnn) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the phrase from 25 Pa. 
Code 89.143a(c) that states, ``* * * within 6 months of the date that 
the building owner sent the operator notification of subsidence damage 
to the structure * * *.'' Additionally, the amendment must remove the 
phrase, ``within 2 years of the date damage to the structure 
occurred.''
    (ooooo) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove the sentences from 25 
Pa. Code 89.143a(d)(3) that state, ``* * * within 6 months of the date 
of issuance of the order. The Department may allow more than 6 months 
if the Department finds that further damage may occur to the same 
structure as a result of additional subsidence.''
    (ppppp) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove 25 Pa. Code 
89.144a(a)(1).
    (qqqqq) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 
89.145a(a)(1) to make it clear that the requirement that survey 
information need only be acquired to the extent that it can be 
collected without extraordinary efforts or expenditures of excessive 
sums of money, is only applicable when it applies to inconveniencing 
landowners. The amendment must remove the provision that allows for 
water supply surveys to be delayed until mining advances within 1000 
feet of a supply. Finally, this section must also be amended to require 
permittees to submit the information required by 25 Pa. Code 
89.145a(a)(1)(i)-(vi) that is necessary to meet the provisions of 30 
CFR 784.20(a)(3) at the time of the application for all existing 
drinking, domestic, or residential water supplies.
    (rrrrr) By February 25, 2002, Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to 25 Pa. Code 89.145a(b) is 
required to be amended to be no less effective than 30 CFR 817.41(j) in 
requiring prompt replacement or restoration of water supplies. 
Additionally, section 89.145a(b) is required to be amended, if 
necessary, to ensure that the phrase ``satisfy the water user's needs 
and the demands of any reasonably foreseeable uses' is consistent with 
the actual use and the reasonably foreseeable use of the supply, 
regardless of whether the current owner has demonstrated plans for the 
use.
    (sssss) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 
89.145a(e)(1) to assure the prompt supply of temporary water to all 
landowners whose water supply has been impacted by underground mining, 
regardless of whether the water supply is within the area of 
presumptive liability.
    (ttttt) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together

[[Page 67067]]

with a timetable for adoption to amend 25 Pa. Code 89.145a(e)(2) to 
require the restoration of water quantity in temporary water supplies 
to the same level as permanent water supplies, as noted in 25 Pa. Code 
89.145a(f)(3).
    (uuuuu) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 
89.145a(f)(1)(v) to make it clear that that de minimis cost increases 
for operation and maintenance of water supplies are not to be passed to 
landowners or water users.
    (vvvvv) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 
89.145a(f)(3)(i) and (ii), if necessary, to ensure that the phrase 
``satisfy the water user's needs and the demands of any reasonably 
foreseeable uses' is consistent with the actual use and the reasonably 
foreseeable uses.
    (wwwww) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 89.146a(c) 
to the extent the time frames for the Department's investigation are 
longer than those in Pennsylvania's approved citizen complaint 
procedures.
    (xxxxx) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove 25 Pa. Code 
89.152(a)(2).
    (yyyyy) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove 25 Pa. Code 
89.152a(4).
    (zzzzz) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to remove 25 Pa. Code 
89.152a(5)(i).
    (aaaaaa) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code 
89.152a(5)(ii) to remove that portion of the section allowing 
compensation in lieu of restoration or replacement of affected water 
supplies. Additionally the amendment must make it clear that agreements 
to replace a water supply or provide for replacement of an alternate 
supply of water must meet the requirements established in the federal 
definition of ``replacement of water supply'' at 30 CFR 701.5.
    (bbbbbb) By February 25, 2002 Pennsylvania must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 25 Pa. Code sections 
89.141(d), 89.141(d)(9), 89.142a(a), 89.142a(f)(1), 89.142a(f)(2)(i), 
89.142a(h)(1), 89.142a(h)(2), 89.142(a)(i)(1), 89.143a(a), 
89.143a(d)(1), 89.143a(d)(2), 89.143a(d)(3), 89.155(b)(1) and (2) and 
89.155(c) to be no less stringent than section 720(a) of SMCRA.

[FR Doc. 01-31614 Filed 12-26-01; 8:45 am]
BILLING CODE 4310-05-P