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Pennsylvania Regulatory Program

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Start Preamble Start Printed Page 67010

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

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

EFFECTIVE DATE:

December 27, 2001.

Start Further Info

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.

End Further Info End Preamble Start Supplemental Information

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.”Start Printed 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 Start Printed Page 67012amount of water to satisfy the water user's needs and the demands of any reasonably foreseeable uses or (ii) is a public water supply system that delivers the amount of water to satisfy the water user's needs and the demands of any reasonably foreseeable uses. 25 Pa. Code 89.145a(f)(3)(i) and (ii). Pennsylvania limits “public water supply systems” to those defined at 25 Pa. Code 89.5.

Responding to OSM concerns on 25 Pa. Code 89.145a(f)(3)(i), Pennsylvania commented that the replacement water supply “must be capable of satisfying the premining uses * * * and, in addition, any foreseeable uses the landowner or water user had intended to develop.” With regard to public water supplies as a possible replacement, Pennsylvania stated that “[a] connection to a public water supply system is a reasonable means of replacement if the public water supply system can satisfy the water user's existing and reasonably foreseeable needs and is adequate for the purposes served.” 28 Pennsylvania Bulletin (Pa.B.) 2777.

To the extent that Pennsylvania's letter and the Pennsylvania Bulletin language could be read to indicate that the user must have plans to demonstrate reasonably foreseeable uses of a water supply or is limited to the current user, we disagree with these interpretations. The proper standard is whether there is a reasonably foreseeable use for the premining capacity, not whether actual plans exist or the uses are limited to the current owner. Actual plans or the current owner's uses (existing and foreseeable) are merely two ways to determine foreseeable uses. As previously stated, the replaced water supply must take into account not only the actual use but also any potential uses by a future owner. As a consequence, OSM is approving the language under section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)), and 25 Pa. Code sections 89.145a(b), and 89.145a(f)(3)(i) and (ii), to the extent that Pennsylvania both interprets and implements the provisions consistent with the definition of “replacement of water supply” at 30 CFR 701.5 where an equivalent replacement would be achieved by meeting the premining uses and any reasonably foreseeable uses of the supply. Therefore, OSM is requiring Pennsylvania to amend 89.145a(b) and 89.145a(f)(i) and (ii), if necessary, to ensure that the phrase “satisfy the water user's needs and the demands of any reasonably foreseeable uses' is consistent with our discussion concerning the actual use and the reasonably foreseeable use of the supply.

Equivalent Replacement Source and Delivery System: The definition of “replacement of water supply” at 30 CFR 701.5 and the corresponding preamble make it clear that “replacement includes provision of an equivalent delivery system.” 60 FR at 16726. As previously noted, the preamble discussion related to waiving the replacement of delivery systems not needed for the postmining land use require that the permittee must demonstrate the availability of a water source equivalent to premining quality and quantity. 60 FR at 16727. As a consequence, a replacement supply must be equivalent to the premining supply both in terms of a delivery system and in terms of water quantity of the source.

Pennsylvania's proposed requirements do not specifically address EPAct requirements that a replacement supply must include the provision of an equivalent water delivery system and an equivalent water source in terms of quantity. Under 25 Pa. Code sections 89.145a(f)(1) and 89.145a(f)(4), Pennsylvania required that the replacement supply include a delivery system and proposed criteria for determining the adequacy of permanently restored supplies. While the proposed standards would address supply permanence, reliability, maintenance, and owner control and accessibility, we are concerned that those criteria, alone, could still require supply owners to accept water supply delivery systems that are not equivalent to the premining system to compensate for a replacement source that is not equivalent to the quantity of the premining source. A water delivery system equal to the premining system is crucial to protecting the supply owner from the practice of installing an unconventional delivery system to make up for a source that does not provide an equivalent quantity of water. Examples of such systems would be the placement of in-ground storage tanks to offset well or spring yields that, alone, do not provide an equivalent quantity of water, and the development of an elaborate delivery system from multiple low yield wells.

In conclusion, the Director is approving section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)), which requires that a water supply adversely impacted by an underground mine be replaced “with a permanent alternate source which adequately serves the premining uses of the water supply or any reasonably foreseeable uses of the water supply,” to the extent that Pennsylvania both interprets and implements the provisions at section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)), 25 Pa. Code 89.145a(b), and 25 Pa. Code 89.145a(f) consistent with the definition of “replacement of water supply” at 30 CFR 701.5 where an equivalent replacement would be achieved by meeting the premining uses and any reasonably foreseeable uses of the supply. Under the Pennsylvania program, an equivalent delivery system or source would be those that adequately serve the premining uses of the water supply or any reasonably foreseeable uses of the water supply. As previously noted above, OSM is requiring Pennsylvania to amend 25 Pa. Code sections 89.145a(b) and 89.145a(f)(3)(i) and (ii), if necessary, to ensure that the phrase “satisfy the water user's needs and the demands of any reasonably foreseeable uses' is consistent with our discussion concerning the actual use and the reasonably foreseeable use of the supply. Finally, OSM will evaluate implementation of the requirements through the oversight process to determine if the processes used by Pennsylvania to determine current owner's needs and demands of any reasonably foreseeable use are consistent with the definition of “replacement of water supply” at 30 CFR 701.5.

With respect to replacement timing, section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) requires restoration of water supplies but does not place an obligation on the permittee to do so promptly. In addition, section 5.2 (52 P.S. 1406.5b) and Pennsylvania regulation 25 Pa. Code 89.146a, as proposed, serve to condition replacement timing based upon supply type, location and property owner notice to the permittee. Section 720(a)(2) requires the prompt replacement of protected water supplies. The federal rules require prompt replacement of a water supply on “both a temporary and permanent basis equivalent to premining quantity and quality.” (30 CFR §§ 701.5 and 817.41(j)). To ensure that all supplies are guaranteed prompt replacement consistent with EPAct, the Director is requiring Pennsylvania to amend this section to require the prompt replacement on both a temporary and permanent basis of all protected water supplies. In requiring the amended language under this section, the Director expects that enforcement actions requiring prompt replacement will at a minimum be handled in conformance with chapter 86, subchapter H (Enforcement & Inspection), which requires citation and abatement of violations within a reasonable time.

Section 5.1(a)(2) (52 P.S. 1406.5a(a)(2)). This section and the Start Printed Page 67013implementing 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.Start Printed 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, Start Printed Page 67015Pennsylvania 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) Start Printed 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 Start Printed Page 67017knows of no technical guidance to support Pennsylvania's assertion. Section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) allows three years to elapse without issuance of an order requiring permanent restoration or replacement. The process of ordering a permanent restoration or replacement does not start until the three years expired. This means that permanent restoration or replacement could go well beyond three years, which is clearly not envisioned by OSM in drafting the federal rules. Pennsylvania's statute delays permanent replacement by up to 50% over the federal guidelines. Allowing an operator up to three years to replace a water supply is not a “prompt” replacement, thus it is less stringent than 720(a)(2) of SMCRA.

Section 5.2(c) (52 P.S. 1406.5b(c)). This section provides that an underground mine operator is presumed to be responsible for contamination, diminution or interruption of water supplies within a rebuttable presumption area. The operator may successfully rebut the presumption if the landowner denied the operator access to the property to conduct a premining survey of the water supply.

There is no federal regulation that prohibits the state from enacting a rebuttable presumption for water. In fact, by finding that operators are presumed responsible for replacement of water supplies within the presumption area, this portion of the statute will assist in insuring that operators are promptly informed of their obligation to replace affected supplies and will assure they promptly provide emergency and temporary water. Thus, the Director finds that this portion of the program is in accordance with § 720(a)(2) of SMCRA, which requires the prompt replacement of a protected water supply.

Section 5.2(d) (52 P.S. 1406.5b(d)). The full text of the language of this section is as follows.

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

The amendment provides that the Department, or a landowner outside the rebuttable presumption area, has the burden of proof in claiming that a water supply has been contaminated, interrupted or diminished. This is consistent with enforcement actions where the regulatory authority has the initial burden, so the Director is approving this language. However, the last sentence of this portion of the amendment requires that the burden of proof for landowners who deny access to an operator to conduct a premining survey, must include premining baseline data as supplied by the landowner or the Department. The portion of the amendment requiring premining baseline data as a condition of establishing burden of proof makes it less effective than the federal regulations at 30 CFR 817.41(j). This section of the federal regulations requires the baseline hydrologic information required in 30 CFR 780.21 and 784.14 to be used to determine the impact of mining activities upon the water supply. Such information is to be supplied by the applicant. The proposed amendment requires the Department, or landowner, to provide data that is to be supplied by the operator in the permit application. Therefore, the following portion of the amendment is less effective than the federal regulations: “Wherever a mine operator, upon request, has been denied access to conduct a premining survey and the mine operator thereafter served notice upon the landowner by certified mail or personal service, which notice identified the rights established by sections 5.1 and 5.3 and this section, was denied access and the landowner failed to provide or authorize access within 10 days after receipt thereof, then such affirmative proof shall include premining baseline data, provided by the landowner or the Department, relative to the affected water supply.” The Director is not approving this language.

Section 5.2(e)(1) (52 P.S. 1406.5b(e)(1)). This section provides that a mine operator can be relieved of liability for affecting a public or private water supply when the contamination, diminution or interruption of the supply existed prior to the mining activity. There is no direct federal counterpart to this provision. However, the federal definition of “replacement of water supply” at 30 CFR 701.5, requires the replacement of protected water supplies whenever the supplies were affected by coal mining operations. If all the contamination, diminution or interruption existed prior to the start of coal mining operations, then the supply was not affected by the coal mining operations. If additional contamination, diminution or interruption occurred after the start of the coal mining operations, then the operator would become liable for the damage caused to the water supply by the coal mining operations. Thus, the Director finds that this subsection is consistent with 30 CFR 701.5 and is approving this portion of Pennsylvania's amendment.

Section 5.2(e)(2) (52 P.S. 1406.5b(e)(2)). This section provides that a mine operator can be relieved of liability for affecting a public or private water supply when the contamination, diminution or interruption occurred more than three years after mining activity occurred. In our letter of June 23, 2000, we indicated to Pennsylvania that the statute of limitations proposed by this section will allow water supplies that otherwise will be protected under federal regulations to continue to be contaminated, diminished or interrupted because mining occurred more than three years prior to the onset of water supply problems. PADEP responded in their letter to OSM dated July 14, 2000, that the same reasoning applied to the statute of limitation issue of section 5.1(b) of BMSLCA was applicable for this section. In addition, Pennsylvania indicated that based on the definition of the term “underground mining activities,” the obligation to replace an affected water supply extends from the time a water supply is first undermined until three years after the mine has closed and reclamation has been completed. In essence, the period of liability is equivalent to the liability period under the federal regulations which ends at the time that jurisdiction would be terminated under the federal program. Pennsylvania contends this period should be sufficient to capture virtually all water supply impacts that occur as a result of the underground mining activity.

The Director is not approving this portion of the BMSLCA for several reasons. First, even though there have been no cases reported to date where this provision has been used to deny restoration or replacement of affected supplies, it does not mean that it will not happen. If this provision were ever used to deny coverage that would otherwise have been provided under federal regulations, it would be less effective than the federal requirements. This provision virtually assures that at some point in time, there will be a water supply that would not be restored or replaced because the landowner did not Start Printed Page 67018report the contamination, diminution or interruption within the noted time frame.

Second, for the reasons discussed in our findings for section 5.1(b) (52 P.S. 1406.5a(b)), which are incorporated herein, the Director believes this section to be less effective. Additionally, Pennsylvania's three-year limit is not a normal statute of limitations because it is not tied to an injury. It ignores the legislative history of analogous § 516 of SMCRA, which acknowledges that “[s]ubsidence occurs * * * on a random basis, at least up to 60 years after mining.” H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977). Pennsylvania's argument that the net effect of 5.2(e)(2) is the same as the federal termination of jurisdiction rule is erroneous. According to Pennsylvania, it is eliminating an operator's liability three years after the mine has closed and reclamation is completed. However, both the termination of jurisdiction rule (30 CFR 700.11(d)) and the EPAct regulations (30 CFR §§ 701.5 and 817.41(j)) recognize that a regulatory authority's jurisdiction may not end, if at all, until all the performance standards are met. The termination of jurisdiction rule, while consistent with the EPAct regulations, is not applicable since subsidence can occur on a random basis at any time. Thus, an operator's liability extends indefinitely into the future. 60 FR at 16736. With section 5.2(e)(2) (1406.5b(e)(2)), once the three years have passed, there is no recourse for the landowner and no way to force an operator to restore or replace a water supply even though a water supply may be affected long after the three years.

Section 5.2(e)(3) (52 P.S. 1406.5b(e)(3)). This section allows a mine operator to be relieved of liability for affecting a public or private water supply when the contamination, diminution or interruption occurred as the result of some cause other than mining. A commenter noted this section could be construed as allowing an operator who is a contributing cause of the water loss, to escape responsibility for a loss for which the operator shares responsibility with another party. Based on this comment, we asked Pennsylvania in our letter of June 21, 1999, to provide a state Attorney General's opinion that the law assures that wherever the operator is partially or entirely responsible for the water loss, state law imposes liability.

Pennsylvania supplied an opinion from the Bureau of Regulatory Counsel in its letter to us dated June 1, 2000. The opinion indicates that in accordance with the rules of statutory construction, the intent of the Pennsylvania General Assembly was to provide a remedy for water supplies affected by underground mining. This section is construed to relieve an operator of responsibility to restore or replace a water supply only where the contamination, diminution or interruption occurred solely as a result of some cause other than mining. Where mining is partly the cause of the contamination, diminution, or interruption the mine operator will not be relieved of the statutory obligation to restore or replace the affected water supply. The Rules of Practice before the Pennsylvania Environmental Hearing Board also support this intention.

There is no direct federal counterpart to this provision. However, the federal definition of “replacement of water supply” at 30 CFR 701.5, requires the replacement, etc. of protected water supplies whenever the supplies were affected by coal mining operations. Therefore, this section, as explained by the Attorney General's opinion, is consistent with the federal definition. The Director finds Pennsylvania's explanation sufficiently responds to the commenter's concerns, and is approving this portion of the amendment.

Section 5.2(f) (52 P.S. 1406.5b(f)). This section requires operators who obtain water samples in a premining or postmining survey to use a certified laboratory to analyze such samples. The operator must submit copies of the results of such analysis to the Department and to the landowner within 30 days of their receipt. Nothing in this section will prohibit a landowner or water user from using an independent certified laboratory to sample and analyze the water supply. This provision is no less effective than 30 CFR 784.20(a)(3), which requires a permit applicant to pay for a premining survey of the quantity and quality of all protected water supplies and to provide copies of such to the property owner and state regulatory authority. The Director is approving this portion of the amendment.

Section 5.2(g) (52 P.S. 1406.5b(g)). This section indicates that if an affected water supply is not restored or replaced within three years an operator may be relieved of responsibility for replacement or restoration of a water supply by (1) purchase of the property, or (2) making a one-time payment equal to the difference between the property's fair market value before the time the water supply was affected and the time the payment was made. In our letter to Pennsylvania dated June 21, 1999, we indicated that this section appears to be less effective than the federal regulations because EPAct has no provisions for relieving an operator of responsibility for water restoration or replacement. EPAct also does not provide for compensation in lieu of replacement or restoration.

In its response of June 1, 2000, Pennsylvania wrote that it may be cost prohibitive to restore or replace a water supply. This section provides the landowner the option of agreeing to compensation to satisfy the mine operator's obligation to restore or replace the affected water supply. Pennsylvania believes that by affording landowners and water users monetary compensation in situations where it is not reasonably possible to afford them an equitable remedy, its program is consistent with federal law.

The Director is not approving this portion of the BMSLCA because it is less stringent than section 720 of SMCRA, which requires the prompt replacement of a protected water supply. The preamble to the federal regulations at 30 CFR 817.41(j) implementing 720 of SMCRA states:

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

Clearly both SMCRA and the federal regulations require restoration, or replacement, and thus compensation in lieu of restoration or replacement is not an option.

Section 5.2(h) (52 P.S. 1406.5b(h)). This section allows a landowner to submit a written request asking PADEP to review an operator's finding that a water supply cannot reasonably be restored or that a permanent alternate source cannot reasonably be provided. In response to the request, the Department will issue an advisory opinion on the validity of the claim within 60 days. In our letter to Pennsylvania dated June 21, 1999, we indicated that this section appears to be less effective than the federal regulations because it allows a finding Start Printed Page 67019that a permanent alternate source cannot be provided. EPAct requires a source to be provided without exception.

In its response of June 1, 2000, Pennsylvania reiterated its argument in response to our comments on section 5.2(g) of BMSLCA. Pennsylvania notes that providing an opinion for landowners on whether they should proceed to elect a damage remedy, has done nothing more than provide a means to assure that a landowner does not accept compensation in lieu of “equitable-type” replacement relief unless it is true that a replacement water supply cannot be reasonably provided by the mine operator. Pennsylvania also indicated that BMSLCA addresses a broader array of water supplies than the federal program. The option to compensate represents a reasonable policy choice that provides a flexible approach to the water supply replacement obligation of underground operators. Finally, Pennsylvania noted that § 720 of federal SMCRA provides that the water supply replacement obligation shall not be construed to prohibit or interrupt underground mining. It is entirely possible underground mining conducted under the federal program may result in impacts to water supplies that cannot reasonably be replaced. In these situations the regulatory authority would be faced with accepting some alternative type of settlement that is reasonable and equitable to the mine operator and landowner.

As noted in the Director's decision on section 5.2(g) (52 P.S. 1406.5(b)(g)) of the BMSLCA, SMCRA and the federal regulations require the replacement or restoration of water supplies without exception. The Director is not approving this portion of the BMSLCA because it is connected with section 5.2(g) (52 P.S. 1406.5(b)(g)) that allows compensation in lieu of replacement or restoration. Section 5.2(h) (52 P.S. 1406.5(b)(h)) is not self-sustaining and is unenforceable without section 5.2(g) (52 P.S. 1406.5(b)(g)). Therefore, it is inconsistent with the requirements of SMCRA and the federal regulations.

Section 5.2(i) (52 P.S. 1406.5b(i)). This section defines the term “permanent alternate source” to include any well, spring, municipal water supply system or other supply approved by the Department which is adequate in quantity, quality and of reasonable cost to serve the premining uses of the affected water supply. In our letter to Pennsylvania dated June 21, 1999, we indicated that this section appears to be less effective than the federal rules because it bases the adequacy of a permanent alternate source of water on premining uses of the water supply rather than the premining quality and quantity and that the reasonable cost provision of this section makes it appear to be less effective than federal regulations which require replacement without regard to cost.

In its response to us of June 1, 2000, Pennsylvania noted that our comments were an incorrect characterization of the statutory provision. The requirement that a replacement water supply must be of reasonable cost is intended to protect landowners and water users from being forced to accept water supplies that are unreasonably expensive to operate or maintain. Replacement water supplies with high costs to operate or maintain would only be acceptable if the mine operator provided for payment of the high costs.

The Director is not approving the portion of this provision that requires permanent alternate replacement sources to be of reasonable cost. The definition of the term “replacement of water supply” as found in the federal regulations at 30 CFR 701.5 indicates that replacement includes payment of operation and maintenance costs in excess of customary and reasonable delivery costs of premining water supplies. Pennsylvania's argument that the requirement that a replacement water supply must be of reasonable cost is intended to protect landowners is not tenable because the federal rules require operators to assume the operation and maintenance costs of the replacement delivery systems if they are “beyond those that are customary and reasonable for the premining supply.” 60 FR at 16726. Therefore, the Director is not approving the phrase “and of reasonable cost” in this section. However, the Director is approving the remaining portion of this section. For a more complete discussion of the Director's decision regarding quality and quantity standards for replacement or restoration of water supplies, please see the Director's findings for sections 5.1(a)(1) and (a)(2) (52 P.S. 1406.5a(a)(1) and (a)(2)), which are incorporated into this finding.

Section 5.2(j) (52 P.S. 1406.5b(j)). This section requires an operator to describe how water supplies will be replaced. This section also provides that the Department cannot require a mine operator to provide a replacement water supply prior to mining as a condition of securing a permit to conduct underground mining. There is no direct federal counterpart to this section. The Director finds that this portion of the amendment is in accordance with that portion of 720(a)(2) of SMCRA which states that “[n]othing in this section shall be construed to prohibit or interrupt underground coal mining operations.” Therefore, the Director approves this portion of the amendment.

Section 5.2(k) (52 P.S. 1406.5b(k)). This section allows any landowner, water user, or mine operator, aggrieved by an order or determination of the department issued under this section, the right to appeal the action to the Environmental Hearing Board within 30 days of receipt of the order. This section allows an appeal right that is found within numerous other sections of Pennsylvania's approved program and therefore is no less effective than the federal regulations at 30 CFR 843.16 (implementing 30 CFR 840.13). The Director approves this section.

Section 5.3(a) (52 P.S. 1406.5c(a)). This section provides that the operator and the landowner may enter into an agreement that establishes the manner and means by which an affected supply will be restored or an alternative supply will be provided or providing compensation for the affected water supply. It also lists what conditions must first be met before the operator will be released from liability. Finally, it prohibits double compensation to the landowner. In our letter of June 21, 1999, to Pennsylvania, we noted that EPAct does not allow compensation for contamination, loss or diminution of water supplies in lieu of replacement. In its response of June 1, 2000, Pennsylvania noted these concerns were the same that we noted in sections 5.2(g) and 5.2(g)(1). Pennsylvania's response for this section is the same as in those sections. In addition, Pennsylvania noted that the decision in National Mining Assoc. v. U.S. Department of the Interior, 172 F.3d 906 (D.C. Cir. 1999), recognizes the legitimacy of voluntary agreements for damages under the federal regulatory program.

The Director is approving this provision to the extent that the agreement to replace a water supply or provide an alternative water supply meets the requirements established in the federal definition of “Replacement of Water Supply” found at 30 CFR 701.5. The Director is not approving agreements that provide for replacement of an alternate supply of water to the extent that water supply will not meet the requirements of the federal definition.

The Director is also not approving this provision to the extent that it allows compensation in lieu of restoration or replacement of affected water supplies. The federal rules do not allow operators and landowners to enter into voluntary Start Printed Page 67020agreements for compensation in lieu of restoration or replacement of affected water supplies. As previously noted, in the Director's Finding for section 5.2(g), which is incorporated herein, SMCRA and the federal rules require restoration or replacement. The terms of EPAct unequivocally require replacement. 60 FR at 16733 (emphasis added). Therefore, this is less effective than SMCRA and the federal rules. The Director would note that Pennsylvania's reliance on the National Mining Association decision is misplaced. The voluntary agreements that are discussed in the court decision are compensation agreements for subsidence damages to any noncommercial building or occupied residential dwelling. The opinion does not extend or recognize compensation agreements for damages to water supplies.

Section 5.3(b) (52 P.S. 1406.5c(b)). This section provides that any agreement made under section 5.3(a) (52 P.S. 1406.5c(a)) must be included in every deed for conveyance of the property covered by the agreement. The Director is not approving this provision to the extent that section 5.3(a) (52 P.S. 1406.5c(a)) has not been approved and hence there will be no agreements providing for compensation in lieu of water supply replacement or restoration. Therefore, section 5.3(b) (52 P.S. 1406.5c(b)) is inconsistent with the requirements of SMCRA and the federal regulations to the extent that section 5.3(a) (52 P.S. 1406.5c(a)) is less effective.

Section 5.3(c) (52 P.S. 1406.5c(c)). This section allows a landowner or water user who claims contamination, diminution or interruption of a water supply to seek any other remedy that may be provided at law or in equity. The section further indicates that in any proceedings in pursuit of remedies other than provided in this Act, the provisions of this act shall not apply and the party or parties against whom liability is sought to be imposed may assert in defense any rights or waivers arising from provisions contained in deeds, leases or agreements pertaining to mining rights or coal ownership on the property in question.

In our letter of June 21, 1999, we asked Pennsylvania to clarify the intent of this section. In particular we wanted to know what was meant by other remedies as used in this section, and if this section allows an operator to assert rights that afford lesser protection than is provided by EPAct.

In its response of June 1, 2000, Pennsylvania indicated that the General Assembly appeared to want to preserve any remedy a landowner or water user had under existing law covering adverse effects to a water supply caused by underground mining. This section gives the landowner or water user the option of pursuing the remedies provided by BMSLCA for water loss, contamination or diminution or pursuing the remedies available at common law or pursuing the remedies available under federal law. Pennsylvania concluded by noting that a mine operator could only assert rights that afford lesser protection than is provided by EPAct if the water user elects to pursue a common law remedy and the mine operator possesses such rights.

This section is inconsistent with § 720(a)(2) of SMCRA and the federal rules to the extent that any state law negates the requirements of, or provides less protection than, EPAct. In a challenge to the federal rules (30 CFR § 817.41(j), 817.121(c)(2) and 701.5), industry plaintiffs asserted that these regulations interfered with state law water rights and that the Energy Policy Act did not preempt state law, thereby allowing a landowner's waiver of water replacement. National Mining Association v. Babbitt, Civil Action No. 95-0938 (D.D.C. May 29, 1998). The district court agreed with OSM that the federal rules do not interfere with state law water rights. See also, 60 FR 16727, 16733 (March 31, 1995). The court went on to hold that the Energy Policy Act “created federal substantive rights that may extend beyond the protections afforded by inconsistent or less protective state laws . . . . Congress did not include limitations in § 720 and instead made the duty to replace or repair a water supply absolute and without exception.” Id. at 12 (emphasis added). For example, any rights or waivers found in deeds or leases or agreements that waive or reduce the protections of EPAct are less stringent and not approved. However, any Pennsylvania law that exceeds the requirements of EPAct is in accordance with SMCRA. Also, matters involving property rights disputes are beyond the scope of SMCRA (see § 507(b)(9) and 510(b)(6)(C) of SMCRA). Accordingly, the Director is not approving this section to the extent any state law negates or provides less protection than EPAct.

Section 5.4(a) (52 P.S. 1406.5d(a)). This section requires the operator to either repair or compensate owners for damage to certain structures caused by underground mining operations. Compensation is to be made to the owner of structures overlying, or in the proximity of, the mine for the reasonable cost of its repair or the reasonable cost of its replacement where the damage is irreparable. Section 720(a)(1) of SMCRA provides for repair of material damage, which “shall include rehabilitation, restoration, or replacement of the damaged” structure or dwelling or compensation in the full amount of the decrease in value resulting from the subsidence. Pennsylvania's statute, as implemented by its regulation at 25 Pa. Code 89.142a(f)(1), states that the operator shall fully rehabilitate, restore, replace or compensate the owner for material damage. The two standards for repair are substantively identical because they both require the operator to rehabilitate, restore, or replace the damaged structure. However, Pennsylvania's standards for compensation are different than SMCRA's because Pennsylvania's are based on the repair or replacement costs while SMCRA's are based on the decrease in value. Even though the standards are different, OSM believes that Pennsylvania's compensation standard is no less stringent than SMCRA since the standard is based on providing the amount of funds required to repair or fully replace the structure. For example, in one federal enforcement case, the construction estimate to repair the structure significantly exceeded the appraisal of the structure's diminished value. Therefore, the Director finds that Pennsylvania's compensation standard is no less effective than § 720(a)(1) of SMCRA because it provides compensation equal to the amount needed by a property owner to repair a structure or to purchase, or build, another structure.

OSM was concerned with Pennsylvania's use of the phrase “in the proximity of the mine.” SMCRA has no distance limitation. Accordingly, we asked PADEP in our letter of June 21, 1999, what the phrase “in the proximity of the mine” meant in regard to the protections afforded by this section. Pennsylvania in its response of June 1, 2000, indicated that while the term was not defined in statute or regulation, it understands the term to mean the structures defined in this section do not have to be directly above the mine workings in order to be covered by repair or compensation requirements, and that the phrase recognizes the fact that subsidence effects often extend outward from points where coal is extracted in a mine. Pennsylvania stated that the phrase is not interpreted to impose any specific distance limitations. We find this explanation does not place any limits on the location of protected structures and find section 5.4(a) (52 P.S. 1406.5d(a)) no less stringent than SMCRA. Start Printed 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 § 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. Start Printed 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 Start Printed Page 67023investigating 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 Start Printed Page 67024actions brought to vindicate public interests. Dole v. Local 427, International Union of Electrical, Radio and Machine Workers, 894 F.2d 607 (3d Cir. 1990). The general rule that applies to government actions is that “no statute of limitations will be applied in civil actions brought by the Government, unless Congress explicitly imposes such time limitations.” Dole, 894 F.2d at 610. The court of appeals in Dole, held that no statute of limitations applies to the government so long as a public purpose is served. While section 5.5(b) (52 P.S. 1406.5e(b)) of BMSLCA may benefit a private individual, this is no different than the situation in Dole, where the Department of Labor sued to enforce individual and public rights. The fact that a public suit may benefit a private individual does not change the application of the general rule for government actions. Under the provisions of the BMSCLA, it will be Pennsylvania that will enforce the requirement that the operator restore or compensate a protected structure. The requirement to restore a structure or compensate its owner not only serves a private purpose it also serves a public purpose as well. The requirements not only protect private structure owners but buildings owned by the government or that serve as a public building or a community or institutional building.

Further, a time limit on subsidence damage claims is adverse to the general scheme of SMCRA. For example, this section would limit Pennsylvania's ability to take enforcement actions and would interfere with the administrative methods established by 517 and 521 of SMCRA since it could be difficult to determine when the structure was initially affected. Since every state could have a different time period, this section is contrary to the public policy of § 102(a) of SMCRA, which established a nationwide program and with 101(g) of SMCRA. It could also preclude some citizen suits because in some situations, a citizen might not know that Pennsylvania was not taking action until the two years elapsed. Additionally, if a request for an investigation by Pennsylvania of possible subsidence damage was not made within two years from the date of structure damage, Pennsylvania would not consider it a violation, because Pennsylvania would not investigate the claim. Since it would not be a cited violation, this would prevent Pennsylvania from holding operators responsible for subsidence damage to structures.

We disagree with Pennsylvania that this time limitation is no less effective than the federal rules. It is contrary to 505(b) of SMCRA, which prohibits any state program from having state laws or regulations that are inconsistent with SMCRA. Failure to repair or compensate a structure owner is in direct contrast with the purposes of EPAct and the federal regulations that require without a time limit, the repair or compensation of protected structures. This is evidenced by language in the Congressional House report that specifically rejected the Secretary's regulations originally promulgated in 1983. The 1983 regulations only required repair or compensation of structures to the extent allowed under state law. H.R. Rep. No. 474, 102d Cong., 2d Sess, pt. 8 at 132 (1992). This provision is also contrary to citizen complaint investigation standards.

With respect to Pennsylvania's characterization that the limitation only pertains to PADEP's responsibility to conduct an investigation, and does not release a mine operator from the responsibility to repair or compensate for structure damage, the Director observes that the net effect will be the same because the only entity, PADEP, that could enforce the obligation is prohibited from doing so. As stated in section 5.6(c) (52 P.S. 1406.5f(c)), the duty to repair or compensate for subsidence damage is the sole and exclusive remedy for such damage. If the operator refuses to acknowledge responsibility for repair or the amount of compensation, and the structure owner did not request an investigation within two years, the owner has no recourse because the state is prohibited from conducting an investigation. We also assert that Pennsylvania's characterization that the statute does not prohibit PADEP from becoming involved in the resolution of cases that have gone beyond the two-year claim period is misleading. First, Pennsylvania fails to elaborate on how this could occur. OSM interprets the statute to mean that, if the owner asks for an investigation within two years but Pennsylvania's enforcement goes beyond two years, Pennsylvania can continue its enforcement. If the owner fails to ask for an investigation, Pennsylvania is precluded from enforcement. Finally, we disagree with Pennsylvania's statement that section 5.5 (52 P.S. 1406.5e) does not end PADEP's responsibilities because of section 5.5(c) (52 P.S. 1406.5e(c)) of the BMSLCA. Section 5.5(c) (52 P.S. 1406.5e(c)) is completely reliant on section 5.5(b) (52 P.S. 1406.5e(b)). Section 5.5(c) (52 P.S. 1406.5e(c)) states that “[t]he department shall make an investigation of a claim within thirty days of receipt of the claim.” Section 5.5(b) (52 P.S. 1406.5e(b)) states if the parties are unable to agree, the owner of the building may file a claim with the Department. Thus, the reference to claim in 5.5(c) (52 P.S. 1406.5e(c)) refers to the claim discussed in 5.5(b) (52 P.S. 1406.5e(b)). Section 5.5(c) (52 P.S. 1406.5e(c)) does not discuss any other options or alternatives. Based on the above rationale, the Director finds this section less effective than the federal rules and is not approving this section.

Finally, since our decision is based on the above, we feel it is unnecessary to address Pennsylvania's interpretation of the federal regulations describing termination of jurisdiction.

Section 5.5(c) (52 P.S. 1406.5e(c)). This section provides that the Department will make an investigation of damage claims within 30 days of receipt of the claim and, within 60 days following the investigation, make a determination in writing whether the damage was caused by subsidence. This section further provides that the Department will issue a written order directing the operator to compensate the structure owner or repair the damaged structure within six months or a longer period. In our letter to Pennsylvania dated June 21, 1999, we indicated that the Department's written determination made within 60 days of the investigation appears to be less effective than the citizen complaint procedures of 30 CFR 842.12(d). The federal rule requires a response within 10 days of the inspection. We further indicated that if the term “written order” means a notice of violation, this section does not appear to be as effective as the federal regulations in that six months exceeds the total time allowed for abatement of a notice of violation. “The total time for abatement under a notice of violation, including all extensions, shall not exceed 90 days from the date of issuance, except upon a showing * * * [of] one or more of the circumstances in paragraph (f) of this section.” 30 CFR 843.12(c).

In its response to us dated June 1, 2000, Pennsylvania wrote that:

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

Start Printed 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 Start Printed Page 67026effective 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; Start Printed Page 67027they 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. Start Printed 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 the BMSLCA that are approvedSections of Act 54 that are conditionally approved or that are required to be amendedSections of Act 54 that are not approved in whole or in part
Repeal of Section 4 (52 P.S. 1406.4))5(b) (52 P.S. 1406.5(b))5.1(b) (52 P.S. 1406.5a(b)).
5.1(a)(2) and (3) (52 P.S. 1406.5a(a)(2) and (3))5.1(a)(1) (52 P.S. 1406.5a(a)(1))5.2(b)(2) (52 P.S. 1406.5b(b)(2)).
5.2(a)(1), (2), and (3) (52 P.S. 1406.5b(a)(1), (2), and (3))5.4(a) (52 P.S. 1406.5d(a))5.2(d) (52 P.S. 1406.5b(d)).
5.2(b)(1) (52 P.S. 1406.5b(b)(1))5.5(a) (52 P.S. 1406.5e(a))5.2(e)(2) (52 P.S. 1406.5b(e)(2)).
5.2(c) (52 P.S. 1406.5b(c))6 (52 P.S. 1406.6))5.2(g), (h), and (i) (52 P.S. 1406.5b(g), (h), and (i)).
5.2(e)(1) and (3) (52 P.S. 1406.5b(e)(1) and (3))5.3(a), (b), and (c) (52 P.S. 1406.5c(a), (b), and (c)).
5.2(f) (52 P.S. 1406.5b(f))5.4(a)(3) (52 P.S. 1406.5d(a)(3)).
5.2(j) (52 P.S. 1406.5b(j))5.4(c) (52 P.S. 1406.5d(c)).
5.2(k) (52 P.S. 1406.5b(k))5.5 (b) and (c) (52 P.S. 1406.5e(b) and (c)).
5.4(a)(1), (2) and (4) (52 P.S. 1406.5d(a)(1), (2), and (4))5.5(f) (52 P.S. 1406.5e(f)).
5.4(b) (52 P.S. 1406.5d(b))5.6(c) and (d) (52 P.S. 1406.5f(c) and (d)). Start Printed 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 Start Printed Page 67030significant, 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 Start Printed Page 67031not 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 Start Printed Page 67032include 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 Start Printed Page 67033the 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 Start Printed Page 67034damage 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 Start Printed Page 67035817.121(d), which calls for the protection of any aquifer or body of water that serves as a significant water source for a public water supply system.

Section 89.141(d)(11). This section requires subsidence control plans to include a description of utilities and a description of the measures to be taken to minimize damage, destruction, or disruption of utility service. There is no federal regulation that corresponds directly to this portion of Pennsylvania's program. However, it is consistent with 30 CFR 817.180, which requires that all underground mining activities must be conducted in a manner that minimizes damage, destruction or disruption of services provided by wells, pipelines, railroads, electric and telephone lines, and water and sewage lines. It is also consistent with 30 CFR 784.20(b)(9), which requires subsidence control plans to contain information specified by the regulatory authority necessary to demonstrate that the operation will be conducted in accordance with 30 CFR 817.121. The Director is approving this section.

Section 89.142. Pennsylvania is deleting this entire section that required a permittee to submit a general mine map and a six-month map. These provisions have been moved, with some modifications, to 25 Pa. Code 89.154. The modifications include removal of reference to structures in place as of April 27, 1966. Pennsylvania replaced those provisions with requirements that mine maps include the structures listed in 25 Pa. Code 89.142a(f)(1)(i)-(iv) as well as dwellings, public buildings and facilities, churches, schools, and hospitals. The Director is approving the deletion of 25 Pa. Code 89.142 because the deletion of references to April 27, 1966, provides protections no less effective than those found in the federal regulations and because the remaining provisions of 25 Pa. Code 89.142 can be found in 25 Pa. Code 89.154.

Section 89.142a(a). This section requires underground mining to be planned and conducted in accordance with requirements found in subsections (1) through (4). The Director is requiring this section to be amended because of the use of the term “underground mining.” Please see the combined finding regarding use of the term “underground mining” as opposed to “underground mining operations” at the end of the regulation section for more information.

Section 89.142a(a)(1). This section requires underground mining to be planned and conducted in accordance with the subsidence control plan and the postmining land use requirements in 25 Pa. Code 89.88. There is no direct counterpart in federal regulations to this section. The Director is approving 25 Pa. Code 89.142a(a)(1) because it is consistent with the requirements of 30 CFR 784.20(b), which requires subsidence control plans as part of the permit application if premining surveys show that subsidence damage would occur and 30 CFR 773.11, which requires permits for operators to engage in mining operations.

Section 89.142a(a)(2). This section requires underground mining to be planned and conducted in accordance with the performance standards in subsections (b)-(j). There is no direct federal counterpart to this section. The Director is approving this section because it is consistent with the requirements of 30 CFR 817.121, which provide the subsidence control performance standards to be followed when conducting underground mining.

Section 89.142a(a)(3). This section provides that underground mining will not be authorized beneath structures where the depth of overburden is less than 100 feet unless the subsidence control plans demonstrate that the mine workings will be stable and that overlying structures will not suffer irreparable damage. There is no direct federal counterpart. The Director is approving this portion of the amendment because it is consistent with the federal regulation at 30 CFR 817.121(a)(1) that requires permittees to adopt measures consistent with known technology that prevent subsidence from causing material damage, maximize mine stability and maintain the value and reasonably foreseeable use of surface lands.

Section 89.142a(a)(4). This section requires mine operators to adopt measures to maximize mine stability. This section also states that it does not prohibit planned subsidence or room and pillar mining. Section 817.121(a)(1) of the federal rules requires operators to maximize mine stability. Additionally, § 720(a)(2) of SMCRA states that nothing in § 720 of SMCRA shall prohibit underground coal mining operations. Therefore, this provision is not inconsistent with the requirements of SMCRA and the federal regulations and the Director is approving it.

Section 89.142a(b). This section lists the requirements for conducting surveys of protected structures and the conditions that relieve an operator from conducting a survey. As noted in the December 22, 1999, Federal Register (64 FR 71652), OSM suspended the portion of 30 CFR 784.20(a)(3) that required a specific structural condition survey of all EPAct protected structures. We suspended this regulation to make our rules consistent with a decision of the U.S. Court of Appeals for the District of Columbia Circuit [National Mining Association v. Babbitt, 173 F.3d 906 (1999)]. However, state regulatory authorities have the option of retaining the premining surveys. Pennsylvania has not indicated that it wishes to eliminate the survey requirements. Since there is no federal counterpart and because the survey will provide additional information to the regulatory authority, the Director is approving 25 Pa. Code 89.142a(b) and the related subsections (b)(1)(i)-(v) and (b)(2)(i)-(iii). This section is not inconsistent with the requirements of SMCRA and the federal regulations. The Director does note that Pennsylvania may be required to submit a program amendment to conform with any future federal rules regarding structure surveys.

Section 89.142a(c)(1). This section provides that no underground mining shall be conducted beneath or adjacent to public buildings and facilities, churches, schools and hospitals, impoundments with a storage capacity of 20 acre-feet (2.47 hectare-meters) or more, or bodies of water or aquifers that serve as significant sources to public water supply systems unless the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the foreseeable use of, the structures. This provision is similar to section 9.1(c) (52 P.S. 1406.9a(c)) of the BMSLCA that the Director approved. However, there is a difference in the language between Pennsylvania's statute and its regulation. The regulation only restricts underground mining beneath or adjacent to the listed facilities, while the statute restricts underground mining activities beneath or adjacent to the listed facilities. This is significant because the federal regulations (as noted in the definition of underground mining activities at 30 CFR 701.5) restrict surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance, and reclamation of roads, above-ground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities including hoist and ventilating ducts, areas utilized for the disposal and storage of waste, and areas on which materials incident to underground mining operations are placed. The Pennsylvania regulation would restrict only underground mining which is defined in the Pennsylvania regulations Start Printed Page 67036at 25 Pa. Code 89.5 as the extraction of coal in an underground mine.

However, the Director is approving this section of the regulations because the statutory language of section 9.1(c) (52 P.S. 1406.9a(c)) of the BMSLCA is controlling over the conflicting language of the regulation. Accordingly, the Director finds that 25 Pa. Code 89.142a(c)(1), when read in conjunction with section 9.1(c) (52 P.S. 1406.9a(c)) of the BMSLCA, is no less effective than the federal regulations at 30 CFR 817.121(d).

Section 89.142a(c)(2)(i)-(v). This section lists the measures to be adopted by the operator to comply with 25 Pa. Code 89.142a(c)(1). The requirements include limiting the percentage of coal extracted, specifications on the size and configuration of the support area, backfilling or backstowing of voids, leaving areas in which no coal extraction will occur, and initiating a monitoring program to detect surface movement. The Director is approving subsections 89.142a(c)(2)(i) (A)-(D), (ii), (iii), (iv), and (v) because these requirements are substantively the same or no less effective than the federal requirements at 30 CFR 784.20(b)(5).

Section 89.142a(c)(2)(vi). This subsection requires a monitoring program to detect surface movement resulting from underground mining. The monitors are to be placed sufficiently in advance of the underground mining so that it can be stopped before protected structures or features are damaged.

In our letter to Pennsylvania of June 21, 1999, we indicated that this section appears to be less effective than the federal regulations because it does not require monitoring in conformance with 30 CFR 784.20(b)(4) of occupied dwellings, non-commercial structures and surface lands.

In its response of June 1, 2000, Pennsylvania indicated that:

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

There is no direct counterpart in federal regulations to this section. The Director agrees with Pennsylvania's explanation and is approving this section with regard to the monitoring program because the monitoring required will help operators and Pennsylvania to determine if subsidence is likely to affect protected structures and features and is consistent with the federal regulations in providing protection to those structures or features.

Section 89.142a(c)(3). This subsection states that if the measures implemented by the operator cause material damage or reduce the reasonably foreseeable use of structures or features listed in paragraph (1), the department will impose additional measures to minimize the potential for these effects. In our letter to Pennsylvania dated June 21, 1999, we indicated that the federal rule at 30 CFR 817.121(e) states that if there is material subsidence damage to structures listed in 30 CFR 817.121(d), then the regulatory authority may suspend mining under or adjacent to such structures or facilities until the subsidence control plan is modified to ensure prevention of further material damage. Section 30 CFR 784.20(b)(4) requires the subsidence control plan to contain, “A description of the monitoring, if any, needed to determine the commencement and degree of subsidence so that, when appropriate, other measures can be taken to prevent, reduce or correct material damage in accordance with § 817.121(c) of this chapter.” When taken together, the EPAct sections mean that the prevention of material damage (and not “minimize the potential”) standard is in place. We further indicated to Pennsylvania that this section appears to be less effective than the federal regulations because it does not include the option for Pennsylvania to suspend mining or have the subsidence control plan modified to ensure prevention of further material damage.

In its response to us of June 1, 2000, Pennsylvania indicated that:

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

OSM agrees with Pennsylvania that 25 Pa. Code 89.142a(c)(3) and 30 CFR 817.121(e) increase protection of the structures and surface features at 25 Pa. Code 89.142a(c)(1) and 30 CFR 817.121(d), respectively. However, 30 CFR 817.121(e) imposes on the regulatory authority the obligation to require permittees to modify subsidence control plans to ensure the prevention of further material damage in the cases where the initial plan or operator's actions fail. In addition, 30 CFR 817.121(e) provides the authority to suspend mining until such a plan is approved. Pennsylvania's response to OSM did not establish that the regulations at 25 Pa. Code 89.142a(c)(3) allow Pennsylvania the discretion to suspend mining until the operator's subsidence control plan ensures the prevention of further material damage. Pennsylvania's regulation merely requires additional measures to minimize the effects, but does not give Pennsylvania the option to stop the mining until Pennsylvania reviews the additional measures and determines that the measures will minimize the effects. The Director is requiring Pennsylvania to amend its regulations to address the requirement.

Section 89.142a(d). This section provides that if the Department determines and notifies a mine operator that a proposed mining technique or extraction ratio will result in irreparable damage to a structure in subsection (f)(1)(iii)-(v), the operator may not use the technique or extraction ratio unless the building owner, prior to mining, consents to the mining or the operator, prior to mining, takes measures approved by the Department to minimize or reduce the impacts resulting from subsidence to these structures. The federal regulations at 30 CFR 817.121(a) require that operations, depending on the type, must either prevent or minimize material damage to occupied residential dwellings and community or institutional buildings. The federal regulations do not provide for an irreparable damage standard. As a result, the provisions of this section are no less effective than the federal regulations regarding structures in danger of being irreparably damaged, Start Printed Page 67037but 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 Start Printed Page 67038SMCRA 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 suspens