[Federal Register Volume 63, Number 164 (Tuesday, August 25, 1998)]
[Proposed Rules]
[Pages 45199-45203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22741]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-122-FOR]


Pennsylvania Regulatory Program

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]
BILLING CODE 4310-05-P