[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]
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