Pennsylvania Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-122-FOR]

Pennsylvania Regulatory Program

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing the receipt of a proposed amendment to the

Pennsylvania Regulatory Program (hereinafter referred to as the

Pennsylvania Program) under the Surface Mining Control and Reclamation

Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., as amended. Pennsylvania

has submitted both Act 54 and implementing regulations as part of the

proposed amendment. This proposal modifies some requirements and adds

other requirements to the Bituminous Mine Subsidence and Land

Conservation Act (BMSLCA) dealing with mine subsidence control,

subsidence damage repair or replacement, and water supply replacement.

This amendment is intended to revise the State program to be consistent

with SMCRA and the Federal regulations.

DATES: Written comments must be received by 4:00 p.m., E.D.T.,

September 24, 1998. If requested, a public hearing on the proposed

amendment will be held on September 21, 1998. Requests to speak at the

hearing must be received by 4:00 p.m., E.D.T., on September 9, 1998.

ADDRESSES: Written comments and requests to testify at the hearing

should be mailed or hand-delivered to Mr. Robert J. Biggi, Director,

Harrisburg Field Office at the first address listed below.

Copies of the Pennsylvania program, the proposed amendment, a

listing of any scheduled public meetings or hearing, and all written

comments received in response to this notice will be available for

public review at the addresses listed below during normal business

hours, Monday through Friday, excluding holidays:

Office of Surface Mining Reclamation and Enforcement, Harrisburg Field

Office, Third Floor, Suite 3C, Harrisburg Transportation Center, 415

Market Street, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-

4036

Pennsylvania Department of Environmental Protection, Bureau of Mining

and Reclamation, Room 209 Executive House, 2nd and Chestnut Streets,

P.O. Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone: (717)

787-5103

Each requester may receive, free of charge, one copy of the

proposed amendment by contacting the OSM Harrisburg Field Office.

FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Director

Harrisburg Field Office, Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

On July 30, 1982, the Secretary of the Interior conditionally

approved the Pennsylvania program. Background on the Pennsylvania

program, including the Secretary's findings and the disposition of

comments can be found

[[Page 45200]]

in the July 30, 1982 Federal Register (47 FR 33079). Subsequent actions

concerning the Pennsylvania program amendments are identified at 30 CFR

938.15.

II. Discussion of the Proposed Amendment

By letter dated July 29, 1998 (Administrative Record No. PA-

841.07), the Pennsylvania Department of Environmental Protection

(PADEP) submitted a proposed amendment to its program pursuant to mine

subsidence control, subsidence damage repair or replacement, and water

supply replacement provisions of SMCRA. The amendment submission

included Act 54 (Pub. L. 357, No.54) and implementing regulations.

Pennsylvania enacted Act 54 on June 22, 1994, which amended the

Bituminous Mine Subsidence and Land Conservation Act (BMSLCA). Section

1 of Act 54 amends the title of the BMSLCA to delete the phrase

``forbidding damage to specified classes of existing structures from

the mining of bituminous coal'' from a list of items defining the

purposes of the BMSLCA under the heading titled ``An Act.'' The deleted

phrase is replaced with language specifying that the BMSLCA will

provide for the restoration or replacement of water supplies affected

by underground mining and the restoration or replacement or

compensation for surface structures damaged by underground mining.

Another phrase, ``providing for acquisition with compensation of coal

support for existing structures not protected by this act, and future

structures,'' under the heading, ``An Act'', was also deleted.

Additional language is added that requires grantors to provide notice

of the existence of voluntary agreements for the restoration of water

supplies or for repair or compensation for structural damage.

Section 2 of Act 54 changes Section 2 ``Purpose,'' of the BMSLCA by

adding language that includes protection of private water supplies,

provides for the restoration or replacement of water supplies affected

by mining, and provides for the restoration or replacement of or

compensation for surface structures damaged by underground mining.

Section 2 of Act 54 also changes Section 3, ``Legislative Findings;

Declaration of Policy,'' of the BMSLCA by deleting the phrase, ``It is

necessary to provide for the protection of those presently existing

structures which are or may be damaged due to mine subsidence.''

Statements were added requiring development of remedies for the

restoration and replacement of water supplies affected by underground

mining and for restoration or replacement or compensation for surface

structures damaged by underground mining.

Section 3 of Act 54 deletes Section 4, ``Protection of Surface

Structures Against Damage from Cave-In, Collapse or Subsidence,'' of

the BMSLCA.

Section 4 of Act 54 amends Section 5(b) of the BMSLCA by deleting a

reference to section 6(b) and replacing it with 6(a) and deleting the

phrase, ``in accordance with the provisions of section 4.''

Section 5 of Act 54 adds Sections 5.1, 5.2, 5.3, 5.4, 5.5, and 5.6

to the BMSLCA. Section 5.1 is a new section titled, ``Restoration or

Replacement of Water Supplies Affected by Underground Mining.'' This

section defines the responsibilities of operators who affect a public

or private water supply. Standards for adequacy of the replacement

supply are specified and the term ``water supply'' is defined.

Section 5.2 is a new section titled ``Procedures for Securing

Restoration or Replacement of Affected Water Supplies; Duties of

Department of Environmental Resources.'' This section defines the

procedures for securing restoration or replacement of affected water

supplies. PADEP's enforcement responsibilities are defined and the

presumption of an operator's responsibility for causing damage to a

water supply under certain circumstances is set forth. This section

also sets forth defenses available to an operator for relief of

liability for affecting a public or private water supply and requires

use of a certified laboratory to analyze water samples for premining or

post mining surveys. The conditions under which an operator can

compensate a landowner for affecting a water supply and the mechanics

of compensation are defined. Additionally, the amendment provides that

a landowner can request PADEP to review an operator's finding that an

affected water supply cannot be restored or that a permanent alternate

source cannot be provided.

Section 5.3 is a new section titled ``Voluntary Agreement;

Restoration or Replacement of Water; Deed Recital.'' This section

provides that a voluntary agreement for restoration or compensation for

contamination, diminution, or interruption of an affected water supply

between the operator and landowner is not prohibited.

Section 5.4 is a new section titled ``Restoration or Compensation

for Structures Damaged by Underground Mining.'' This section sets forth

the structures protected under the BMSLCA and limits the operator's

responsibilities if denied access to the property with the damaged

structures.

Section 5.5 is a new section titled ``Procedure for Securing Repair

and/or Compensation for Damage to Structures Caused by Underground

Mining; Duties of Department of Environmental Resources.'' This section

describes the procedures for securing repair or compensation for damage

to structures caused by underground mining and the circumstances under

which a landowner may file a claim with PADEP for damage to structures.

PADEP's responsibilities for investigating claims are defined. This

section also discusses the limits of the operator's liability for

repairs or compensation and defines the process an operator or a

landowner can use to appeal an order of PADEP. This section provides

enforcement procedures for PADEP to use if the operator fails to repair

or compensate for subsidence damage within certain time limits.

Additionally, this section provides that, except under certain

circumstances, PADEP cannot withhold permits or suspend review of

permits of an operator against whom claims are filed.

Section 5.6 is a new section titled ``Voluntary Agreements for

Repair or Compensation for Damages to Structures Caused by Underground

Mining; Deed Recital.'' This section provides that voluntary agreements

for repair or compensation for damages to structures caused by

underground mining are not prohibited. The effects of deeds, leases and

other agreements on the operator's responsibilities under this

amendment are also detailed.

Section 6 of Act 54 amends Section 6 ``Repair of Damage or

Satisfaction of Claims; Revocation or Suspension of Permit; Bond or

Collateral,'' of the BMSLCA. This section deletes subsection (a) in its

entirety. The amendment also includes the addition, in subsection (b),

of references to Sections 5, 5.4, and 5.6 regarding the operator's

responsibility to file a bond.

Section 7 of Act 54 adds Section 9.1 to the BMSLCA. Section 9.1 is

a new section titled ``Prevention of hazards to human safety and

material damage to certain buildings.'' This section prohibits mining

techniques or extraction ratios that will result in subsidence that

creates an imminent hazard to human safety. Additionally, this section

prohibits underground mining under or adjacent to specific types of

structures and buildings.

Section 8 of Act 54 repeals section 15 of the BMSLCA. Section 15 is

titled,

[[Page 45201]]

``Proceedings for Protection of Surface Structures.''

Section 9 of Act 54 amends Section 17.1 of the BMSLCA. Section

17.1, ``Unlawful Conduct,'' is amended to delete the phrase, ``to cause

land subsidence or injury.''

Section 10 of Act 54 adds Section 18.1 to the BMSLCA. Section 18.1

is a new section titled ``Compilation and Analysis of Data.'' This

section describes data collection and analysis requirements of PADEP to

determine the effects of deep mining on subsidence of surface

structures and features and water resources. This section further

describes PADEP's reporting procedures and responsibilities.

The additions and changes to regulations proposed by the amendment

are described as follows. The amendment will result in changes to the

following provisions of the Pennsylvania program: 25 Pa Code 89.5, 25

Pa Code 89.33, 25 Pa Code 89.34, 25 Pa Code 89.35, 25 Pa Code 89.36, 25

Pa Code 89.67, and 25 Pa Code 89.141. The following sections are

proposed to be added to the Pennsylvania program: 25 Pa Code 89.142a,

25 Pa Code 89.143a, 25 Pa Code 89.144a, 25 Pa Code 89.145a, 25 Pa Code

89.146a, 25 Pa Code 89.152, 25 Pa Code 89.153, 25 Pa Code 89.154, and

25 Pa Code 89.155. Finally, sections 25 Pa Code 89.142-89.145 are

deleted under the proposal. A brief summary of the proposed changes and

additions to the Pennsylvania program are found below.

The changes made to 25 Pa Code 89.5 ``Definitions,'' are the

additions of definitions for ``de minimis cost increase,''

``dwelling,'' ``fair market value,'' ``irreparable damage,'' ``material

damage,'' ``noncommercial building,'' ``permanently affixed appurtenant

structures,'' ``public buildings and facilities,'' ``public water

supply system,'' ``rebuttable presumption area,'' ``underground

mining,'' ``underground mining operations,'' and ``water supply.''

These definitions are being proposed to clarify various aspects of the

changes to other regulations affected by the proposed amendment.

A revision to 25 PA Code 89.33 ``Geology,'' adds coal seam

thickness as an information requirement in permit applications.

A revision to 25 PA Code 89.34 ``Hydrology,'' adds the ownership of

wells and springs to the list of information that must be provided in

the groundwater inventory. Additionally, the term ``potentially

impacted offsite area'' is replaced with the term ``adjacent area.''

A revision to 25 PA Code 89.35 ``Prediction of the hydrologic

consequences,'' requires permit applicants to predict whether

underground mining activities may result in contamination, diminution

or interruption of water supplies within the permit or adjacent area.

A revision to 25 Pa Code 89.36 ``Protection of the hydrologic

balance.'' adds a new subsection (c). This subsection is added to

require operators to describe the measures they will use to replace

water supplies impacted by the mining operation.

A revision to 25 PA Code 89.67, ``Support facilities,'' clarifies

that this section applies to surface sites associated with underground

mining activities.

Numerous revisions to 25 PA Code 89.141 ``Subsidence control:

application requirements,'' were made. A revision to subsection (a)

requires a description of geologic conditions which affect the

likelihood or extent of subsidence or subsidence related damage. A

revision to subsection (d) clarifies the area which must be covered by

the subsidence control plan. Subsection (d)(2) is a new information

requirement that requires a description of the potential impacts of

subsidence on overlying structures, surface lands and water supplies. A

revision to Subsection (d)(3) requires descriptions of the measures to

be taken to prevent material damage to, or reduction in, the reasonably

foreseeable uses of certain structures and features listed in section

89.142a(c). Subsection (d)(4) requires a description of anticipated

effects due to mine subsidence. Subsection (d)(5) requires a general

description of the measures a mine operator will take to correct

material damage to surface lands if damage occurs as a result of

underground mining. Subsection (d)(6) requires a general description of

the measures a mine operator will take to prevent irreparable damage to

certain structures. Subsection (d)(7) requires a description of any

monitoring the mine operator will conduct in conjunction with the

subsidence control plan. Subsection (d)(8) requires a description of

the measures that will be taken to maximize mine stability, while

subsections (d)(9) and (10) require descriptions of the measures that

will be taken to protect perennial streams. Subsection (d)(11) is a new

section added to require information concerning the construction, use

and approximate age of pipelines which will enable PADEP to assess the

potential of damage which would result in an imminent hazard to human

safety. Subsections (d)(12) and (13) require information relating to

subsidence control measures that must be taken to comply with statutes

other than the BMSLCA.

25 Pa Code 89.142a is a new section titled, ``Subsidence control:

performance standards.'' Subsection (a) sets forth general subsidence

control requirements. Subsection (b) is a new requirement which

specifies when mine operators will conduct premining surveys, the types

of structures subject to the surveys, and the information to be

included in the surveys. Subsection (c) is sets forth the special

protections afforded to public buildings and facilities, impoundments

and certain water bodies. This revision also describes requirements for

mining beneath these structures. Subsection (d) prohibits a mine

operator from mining in a manner which would cause irreparable damage

to dwellings and certain other structures. Subsection (e) revises an

existing regulation concerning the repair of damage to surface lands.

This subsection requires an operator to correct material damage to

surface lands. Subsection (f) sets forth an operator's responsibility

to repair or compensate for subsidence damage to certain buildings and

structures. Subsection (g) revises an existing regulation concerning

protection of utilities. This section describes the methods a mine

operator must take to minimize damage, destruction or disruption in

services provided by utilities. Subsection (h) is an existing

regulation on perennial stream protection which is relocated in this

rulemaking. This subsection requires mine operators to take measures to

maintain the value and reasonably foreseeable uses of perennial streams

and to restore to the extent technologically and economically feasible

restoration of streams adversely impacted by mining. Subsection (i)

requires PADEP to suspend underground mining beneath certain areas to

prevent hazards to human safety. Subsection (j) is an existing

regulation that has been relocated. This subsection prohibits mining in

an area that is not covered by an approved subsidence plan. Subsection

(k) is a new performance standard that will require mine operators to

report mine subsidence damage claims to PADEP. Subsection (l) is an

advisory statement that clarifies that PADEP does not have the

authority to resolve property rights disputes.

25 PA Code 89.143a ``Subsidence control: procedure for resolution

of subsidence damage claims,'' is a new section that describes the

responsibilities of all parties in resolving claims of mine subsidence

damage.

[[Page 45202]]

25 PA Code 89.144a ``Subsidence control: relief from

responsibility,'' is a new section that describes the conditions under

which an operator may be relieved of the responsibility to repair or

compensate for damage to a structure.

25 PA Code 89.145a ``Water supply replacement: performance

standards,'' is a new section that pertains to the restoration or

replacement of water supplies contaminated, diminished or interrupted

by underground mining. Subsection (a) requires mine operators to

conduct premining surveys of certain water supplies. Subsection (b)

sets forth a mine operator's basic responsibility to restore or replace

a water supply that has been contaminated, diminished or interrupted by

underground mining activities. Subsection (c) requires a mine operator

to notify PADEP within 24 hours of receiving a complaint the a water

supply has been affected. Subsection (d) repeats the statutory

requirement to investigate all complaints of water supply

contamination, diminution or interruption. Subsection (e) sets forth

the requirement to provide a temporary water supply when a water supply

has been impacted by underground mining within the rebuttable

presumption zone. Subsection (f) sets forth the requirements for

determining the adequacy of a permanently restored or replacement water

supply.

25 PA Code 89.146a ``Water supply replacement: procedures for

resolution of water supply damage claims,'' is a new section that

summarizes the responsibility of mine operators, landowners, water

users and PADEP in resolving claims of water supply contamination

diminution or interruption.

25 PA Code 89.152 ``Water supply replacement: relief from

responsibility,'' is a new section which describes the conditions under

which an operator may be relieved of responsibility to restore or

replace a water supply.

25 PA Code 89.153 ``Water supply replacement: rebuttable

presumption,'' is a new section which describes the effect of the

rebuttable presumption provision under section 5.2 of the BMSLCA and

the means by which an operator may rebut a presumption.

25 PA Code 89.154 ``Maps,'' describes the contents of the mine

subsidence control plan maps and the six month mine maps. Most of the

requirements were existing and were relocated from 25 PA Code 89.142.

Subsection (a) describes the content of the general mine map, while

subsection (b) describes the content of the six month mine map. While

much of the information required by this section is the same as

required by existing regulations, some additional details have been

added.

25 PA Code 89.155 ``Public Notice,'' contains public notice

requirements which have been relocated from Section 89.144. Two

additional parties have been added to the list of persons to be

notified. Under this proposal, owners of all structures and owners of

all utilities must now be notified of proposed mining.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is now

seeking comment on whether the amendment proposed by Pennsylvania

satisfies the applicable requirements for the approval of State program

amendments. If the amendment is deemed adequate, it will become part of

the Pennsylvania program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Harrisburg Field Office will

not necessarily be considered in the final rulemaking or included in

the Administration Record.

Public Hearing

Persons wishing to comment at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by close of

business on September 9, 1998. If no one requests an opportunity to

comment at a public hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to comment have been heard. Persons in the audience

who have not been scheduled to comment and who wish to do so will be

heard following those scheduled. The hearing will end after all persons

who desire to comment have been heard.

Public Meeting

If only one person requests an opportunity to comment at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendments may request a meeting at the Harrisburg Field Office by

contacting the person listed under FOR FURTHER INFORMATION CONTACT. All

such meetings will be open to the public and, if possible, notices of

the meetings will be posted in advance at the locations listed above

under ADDRESSES. A summary of meeting will be included in the

Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of

Management and Budget (OMB) under Executive Order 12866 (Regulatory

Planning and Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

[[Page 45203]]

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions in the analyses for the corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 18, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-22741 Filed 8-24-98; 8:45 am]

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