RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 89]
Mine Subsidence Control, Subsidence Damage Repair and Water Supply Replacement
[28 Pa.B. 2761] Preamble
The Environmental Quality Board (Board) by this order amends Chapter 89 (relating to the underground mining of coal and coal preparation facilities). The amendments pertain to the control and repair of mine subsidence damage and the replacement of water supplies affected by underground bituminous coal mining.
This order was adopted by the Board at its meeting of March 17, 1998.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact Roderick A. Fletcher, Director, Bureau of Mining and Reclamation, P. O. Box 8461, Rachel Carson State Office Building, Harrisburg, PA 17105-8461, (717) 787-5103, or Joseph Pizarchik, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 2063, Rachel Carson State Office Building, Harrisburg, PA 17105-2063, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 voice (users). This rulemaking is available electronically through the Department of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The amendments are adopted under the authority of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. §§ 1406.1--1406.21); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
D. Background and Summary
This rulemaking is intended to bring the Commonwealth's regulations on mine subsidence control, subsidence damage repair and water supply replacement into conformance with the act of June 22, 1994 (P. L. 357, No. 54) (Act 54) amendments to the BMSLCA. In addition to inserting the new provisions implemented by Act 54, this rulemaking also incorporates several changes aimed at clarifying and facilitating the implementation of the new statutory provisions.
This rulemaking also includes changes which are intended to bring the Commonwealth's underground coal mining regulatory program into closer conformance with its Federal counterpart. While the Commonwealth's program is generally broader in terms of the scope of structures covered by subsidence damage repair requirements and the scope of water supplies covered by replacement requirements, there are some areas where the Commonwealth's regulations are not as inclusive as the Federal regulations or incorporate different approaches for resolving damage claims. Regulations are included to resolve these differences to the extent practical and permissible under the BMSLCA.
This rulemaking also includes changes that are intended to eliminate the confusion over utility protection requirements, which has arisen as a result of an Environmental Hearing Board (EHB) decision in P.U.S.H. et al. v. DEP, et al. EHB Docket No. 95-232-R (Consolidated) (Opinion and Order on Motions for Summary Judgment issued November 27, 1996) pp. 5-13. Since the decision, there has been controversy between mine operators and utility owners regarding the measures which must be taken to protect utilities and who bears the burden of taking protective measures. The revised regulations include provisions which are intended to restore the conventional arrangements made between mine operators and utility owners prior to the EHB's P.U.S.H. decision.
Finally, the rulemaking also includes changes made for purposes of clarifying the existing regulations. These changes were made in accordance with Executive Order 1996-1.
The following is a description of the final-form regulations by section.
§ 89.5. Definitions.
A definition of the term ''de minimis cost increase'' was added for clarity. The term identifies a threshold below which an operator is not responsible for compensating a landowner or water user for the increased cost of operating a replacement water supply. The definition is consistent with that employed in the Department's surface mining regulatory program which is derived from Commonwealth case law.
A definition of the term ''dwelling'' was added for clarity.
A definition of the term ''fair market value'' was added for clarification. The term is used to determine the amount of compensation an operator must provide to a landowner whose water supply cannot be replaced. The definition is taken from Blacks Law Dictionary.
A definition of the term ''irreparable damage'' was added for clarity. The term is used to describe a level of damage which must be prevented to dwellings and certain agricultural buildings unless the structure owner consents. The definition is modified from that presented in the proposed rulemaking. The final definition includes criteria relating to structural stability, special architectural characteristics and practicality of repairs.
A definition of the term ''material damage'' was added for clarity and to conform with to the Federal definition in 30 CFR 701.5 (relating to definitions).
A definition of ''noncommercial building'' was added for clarity and to demonstrate conformance with the Federal definition in 30 CFR 701.5. The term includes ''community or institutional buildings'' defined in § 86.101 (relating to definitions).
A definition of the term ''permanently affixed appurtenant structures'' was added for clarity. The term is used to describe structures associated with dwellings and buildings accessible to the public which must be repaired. The term is defined to conform to the Federal term ''structures related thereto'' which is used to describe structures that are covered in association with occupied residential dwellings.
A definition of the term ''public buildings and facilities'' was added for clarity. The definition is based on the Federal definition of ''public building'' in 30 CFR 761.5 (relating to definitions) and the dictionary definition of ''facility.'' The definition is used to clarify which buildings and facilities cannot be undermined if subsidence will cause material damage or reduce the reasonably foreseeable use of the building or facilities.
A definition of the term ''public water supply system'' was added for clarity. The term is used to designate those aquifers and water bodies that are protected against material damage or reduction in reasonably foreseeable use. If a well or spring supplies a water supply system which falls within the scope of the definition, the source aquifer which recharges that well or spring is eligible for special protection. Similarly, streams and other water bodies supplying these systems are afforded special protection. The definition is based partially on the definition of community water supply system as used in the safe drinking water program. It also includes systems serving public buildings, churches, schools, hospitals and nursing homes.
The term ''rebuttable presumption area'' was defined to facilitate descriptions of the term when it is used in information requirements and performance standards. The term refers to an area within the proximity of a mine where an operator is presumed responsible for impacting water supplies. The term is defined to encompass an area above the mine, which is determined by projecting a line along a 35° angle from the outside of a coal removal area to the land surface.
Definitions were provided for the terms ''underground mining'' and ''underground mining operations.'' These terms are used to describe subcategories of activities within the broader term ''underground mining activities.'' Underground mining operations includes all operations which take place in an underground mine, while underground mining refers to the actual extraction of coal. These terms are used to tailor regulatory requirements to the appropriate activity.
A definition of the term ''water supply'' was added for clarity and convenience. The definition is taken from the language in section 5.1 of the BMSLCA (52 P. S. § 1406.5a) and relates to the types of water supplies which must be replaced when affected by underground mining activities.
§ 89.33. Geology.
Section 89.33 was revised to add coal seam thickness as an information requirement in permit applications. This addition is intended to achieve consistency with the Federal regulation in 30 CFR 784.20(b)(3) (relating to subsidence control plans).
§ 89.34. Hydrology.
Section 89.34 was revised to add the ownership of wells and springs to the list of information which must be provided in the groundwater inventory. This change is intended to achieve consistency with the Federal counterpart regulation in 30 CFR 784.14(b) (relating to hydrologic information).
Section 89.34 was also revised to replace the term ''potentially impacted offsite area'' with the term ''adjacent area.'' The term ''adjacent area'' has a specific meaning while the former term does not.
§ 89.35. Prediction of the hydrologic consequences.
Section 89.35 was revised to require permit applicants to predict whether underground mining activities may result in contamination, diminution or interruption of water supplies. This language is intended to conform to the Federal requirement in 30 CFR 784.14(e).
§ 89.36. Protection of the hydrologic balance.
A new subsection was added to require an operator to describe the measures which the operator will use to replace water supplies impacted by the mining operation. This requirement reflects those contained in section 5.2(j) of the BMSLCA (52 P. S. § 1406.5b(j)) and 30 CFR 784.20(b)(8).
§ 89.67. Support facilities.
Section 89.67 was revised to clarify that this section applies to surface sites associated with underground mining activities. Surface sites include shaft sites, slope sites, drift entry sites, borehole sites, coal loading sites, coal preparation sites and other sites where surface operations associated with underground mining activity take place.
§ 89.141. Subsidence Control: application requirements.
Subsection (a) was revised to require a description of geologic conditions which affect the likelihood or extent of subsidence or subsidence related damage. This revision is intended to conform to the Federal requirement in 30 CFR 784.20(b)(3). Additional language was also inserted to clarify the relationship between the geologic information requirements of § 89.33 and this subsection.
The introductory paragraph in subsection (d) was revised to clarify the area which must be covered by the subsidence control plan. Subsidence control plans must now include all areas where structures, facilities and features may be materially damaged by mine subsidence. At a minimum, the plan must cover the area within a 30° angle of draw of proposed mining to ensure inclusion of all structures that are covered by the Federal rebuttable presumption on subsidence damage.
Subsection (d)(2) is a new information requirement. It requires a description of the potential impacts of subsidence on overlying structures, surface lands and water supplies. This requirement was included to conform to the Federal requirement in 30 CFR 784.20(a)(2).
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 § 89.142a(c). These structures and features include: public buildings and facilities; churches, schools and hospitals; and impoundments and water bodies with storage capacities greater than 20 acre-feet (2.47 hectare-meters). This paragraph was revised from that which appeared in the proposed rulemaking to better clarify a mine operator's options for mining beneath and adjacent to these structures and features.
Subsection (d)(4) requires a description of anticipated effects due to mine subsidence. This paragraph was added to conform to the Federal requirements in 30 CFR 784-20(f).
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 structures enumerated in § 89.142a(f)(1)(iii)--(v). Subsection (d)(7) requires a description of any monitoring the mine operator will conduct in conjunction with his subsidence control plan.
Subsection (d)(8) requires a description of the measures that will be taken to maximize mine stability in accordance with § 89.142a(a). Subsection (d)(9) and (10) require descriptions of the measures that will be taken to protect perennial streams and, in particular, those perennial streams and aquifers which serve as significant sources to public water supply systems.
Subsection (d)(11) is a new information requirement which is intended to elicit additional information on utilities and the measures that will be used for their protection. New subsection (d)(11) requires information concerning the construction, use and approximate age of pipelines, which will enable the Department to better assess the potential of damage which would result in an imminent hazard to human safety.
Subsection (d)(12) and (13) require information relating to subsidence control measures that must be taken to comply with statutes other than the BMSLCA, and authorizes the Department to require any additional information as needed to properly evaluate subsidence control plans.
§ 89.142a. Subsidence control: performance standards.
Subsection (a) sets forth general subsidence control requirements including the requirement to mine in accordance with an approved subsidence control plan, the requirement to maximize mine stability and the restriction on mining beneath structures in areas where the cover thickness is less than 100 feet (30.48 meters). Paragraph (3) is revised to clarify the requirements for mining beneath structures in areas where cover thickness is less than 100 feet (30.48 meters).
Subsection (b) is a new requirement pertaining to premining structure surveys. Mine operators are now required to conduct premining surveys of dwellings, buildings that are accessible to the public, noncommercial buildings customarily used by the public, barns, silos and certain agricultural structures. The surveys must be conducted prior to the time the structure falls within a 30° angle of draw of underground mining. Surveys must describe the premining condition of the structure and, if the structure is historically or architecturally significant, the presence of any architectural characteristics that will require special craftsmanship to restore or replace. Requirements also call for survey results to be kept confidential.
Subsection (c) sets forth the special protections afforded to public buildings and facilities, churches, schools, hospitals, impoundments and water bodies of 20 acre-feet (2.47 hectare-meters) and larger, and aquifers and perennial streams which serve as significant sources to a public water supply system. Subsection (c) retains the existing requirements for mining beneath these structures and features. The default standard for mining beneath these structures and features is 50% coal support although the Department may require a greater percentage if the overburden thickness is sufficient to render 50% coal support inadequate or if the Department finds that 50% coal support is proving insufficient in a particular mine. Subsection (c) also clarifies alternatives to the coal support standard including surface measures which may be undertaken in conjunction with planned and controlled subsidence.
Subsection (d) prohibits a mine operator from mining in a manner which would cause irreparable damage to dwellings and permanently affixed appurtenant structures, barns, silos and certain permanently affixed structures of 500 or more square feet (46.45 or more square meters) used for agricultural purposes. The prohibition is predicated upon the Department determining that irreparable damage would result from the proposed mining. The proposed mining can occur if the mine operator obtains the consent of the structure owner to allow the damage to occur. Alternatively, the proposed mining can proceed if the mine operator, prior to mining, implements measures approved by the Department to minimize or reduce the irreparable damage which would result from subsidence.
Subsection (e) is a revised version of an existing regulation concerning the repair of damage to surface lands. The former regulation was vague in that it required operators to maintain the value and reasonably foreseeable use of surface lands. The revised version specifies that an operator must correct material damage to surface lands. The revised language also parallels that of the Federal counterpart regulation 30 CFR 817.121(c)(1) (relating to subsidence control).
Subsection (f) is a new regulatory section which reflects the provisions of section 5.4 of the BMSLCA (52 P. S. § 1406.5d). It sets forth an operator's responsibility to repair or compensate for subsidence damage to buildings that are accessible to the public and their permanently affixed appurtenant structures; noncommercial buildings customarily used by the public; barns, silos and certain agricultural structures of 500 or more square feet (46.45 square meters) in area; and, dwellings, permanently affixed appurtenant structures and certain improvements. It should be noted that section 5.4(a)(3) of the BMSLCA and the corresponding clause in § 89.142a(f)(1)(iii) are now being interpreted to require the operator to repair all dwellings in place at the time of underground mining and all permanently affixed appurtenant structures in place at the time of underground mining. This interpretation is based on the rule of statutory construction known as ''the rule of the last antecedent'' which is also an accepted principle of English grammar. This rule provides that unless plainly meant otherwise a modifying clause operates only upon the phrase preceding it. This interpretation differs from the Department's previous interpretation in that the requirement to be in place on August 21, 1994, the date of first publication of the permit application, or date of first publication of a permit renewal application is no longer viewed as applicable to dwellings or permanently affixed appurtenant structures. Under the rule of the last antecedent, the requirement for being in place on one of the specified dates applies only to improvements. In addition, language has been added to the text of the amendment to clarify that the requirements also pertain to mining conducted on August 21, 1994, the effective date of Act 54.
Subsection (g) is a revised version of the current regulation regarding protection of utilities. Subsection (g) includes the basic requirement to minimize damage, destruction or disruption in services provided by utilities, which is derived from the Federal regulation in 30 CFR 817.180 (relating to utility installations). Paragraph (2) describes various measures a mine operator may take in complying with the performance standard, including a program for detecting subsidence damage and minimizing disruption in service; providing timely notice of proposed mining to the utility operator; providing support in accordance with the utility owner's support rights; providing temporary or alternate utility service to customers; and demonstrating that mine subsidence will not materially damage the utility. This represents a change from the proposed rulemaking in that it will allow notification to suffice for meeting the requirement to minimize damage, destruction or disruption in services provided by utilities. It will then be up to the investor-owned utility to protect the utility line. If the utility line is owned by a government agency, mining beneath the utility line will not be allowed to occur if subsidence will cause material damage to the utility line or reduce its reasonably foreseeable use.
Subsection (h) is an existing regulation on perennial stream protection which has been relocated during this rulemaking. Subsection (h) 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 any streams which have been adversely impacted by mining.
Subsection (i) relates to the prevention of imminent hazards to human safety. Paragraph (1) restates the former regulation found under § 89.143(f). It requires the Department to suspend underground mining beneath urbanized areas, certain buildings and facilities and perennial streams if the mining poses an imminent hazard to human safety. Paragraph (1) was relocated from former § 89.143(f) and modified to limit protection of solid and hazardous waste disposal facilities to those which contain a liner. Paragraph (2) restates section 9.1(a) of the BMSLCA (52 P. S. § 1406.9a(a)) and gives the Department broad authority to restrict or prohibit mining if it determines that there will be an imminent hazard to human safety.
Subsection (j) is a performance standard relocated from § 89.143(g). It prohibits mining in an area that is not covered by an approved subsidence control plan.
Subsection (k) is a new performance standard which requires mine operators to report mine subsidence damage claims to the Department. This requirement will enable the Department to investigate subsidence damage incidents near the time of occurrence when details relating to causation and extent of damage are best observed.
Subsection (l) is an advisory statement that has been added at final rulemaking. It clarifies that the Department does not have the authority to resolve disputes over property rights.
§ 89.143a. Subsidence control: procedure for resolution of subsidence damage claims.
Section 89.143a is a new section which describes the responsibilities of mine operators, structure owners and the Department in resolving claims of mine subsidence damage. These responsibilities are taken directly from section 5.5 of the BMSLCA.
§ 89.144a. Subsidence control: relief from responsibility.
Section 89.144a is a new section which describes the conditions under which an operator may be relieved of responsibility to repair or compensate for damage to a structure. This section comes directly from the BMSLCA, and is included to alert operators and structure owners of their rights and responsibilities under the BMSLCA.
§ 89.145a. Water supply replacement: performance standards.
Section 89.145a is an entirely new regulatory section that pertains to the restoration or replacement of water supplies which are contaminated, diminished or interrupted by underground mining.
Subsection (a) requires mine operators to conduct premining surveys of all water supplies prior to mining in an area which could result in the water supplies being impacted. The subsection establishes a default distance of 1,000 feet (304.80 meters) for determining the timing of surveys. It further provides that the Department may increase or decrease this distance based on site specific considerations. Paragraph (2) describes the minimum information to be obtained during the survey and limits information acquisition to that which is reasonably available. Paragraph (3) describes the procedures a mine operator must follow when the landowner or water user denies access to conduct a survey.
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 the operator's underground mining activities. The language has been revised from that of the proposed rulemaking to reference underground mining activities rather than underground mining. This change was made to conform to the language of the statute. Language has been added to clarify that this subsection does not apply to those aspects of underground mining activities that are regulated as surface mining activities under Chapter 87 (relating to surface mining of coal).
Subsection (c) requires a mine operator to notify the Department within 24 hours of receiving a complaint that the operator's underground mining activity has affected a water supply.
Subsection (d) repeats the statutory requirement to diligently investigate all complaints of water supply contamination, diminution or interruption. It also requires the operator to notify the Department of the results of investigations in a timely manner.
Subsection (e) sets forth the requirement to provide temporary water when a water supply has been impacted by underground mining activity within the rebuttable presumption zone and the landowner or water user is without a readily available alternate source of water. It also establishes basic criteria for the quality and quantity of temporary water supplies.
Subsection (f) sets forth the criteria for determining the adequacy of a permanently restored or replacement water supply. It establishes standards for quality, quantity, reliability, cost, maintenance and control. The requirements specified in this subsection are for the most part the same as those of the Department's surface mining program which is based on similar statutory language and several court decisions interpreting that language. In regard to costs, subsection (f) requires that a mine operator must provide for the permanent payment of increased operation and maintenance costs which are more than de minimis. Subsection (f) also includes a clause which provides for the assumption of reasonable expansion in determining the water needs of agricultural operations.
§ 89.146a. Water supply replacement: procedure for resolution of water supply damage claims.
Section 89.146a is a new regulatory section which summarizes the responsibilities of mine operators, landowners, water users and the Department in resolving claims of water supply contamination, diminution or interruption. The procedures described in this section are based on section 5.2 of the BMSLCA (52 P. S. § 1406.5b).
§ 89.152. Water supply replacement: relief from responsibility.
Section 89.152 is a new section which describes the conditions under which an operator may be relieved of responsibility to restore or replace a water supply. These releases are based on sections 5.1 and 5.2 of the BMSLCA.
§ 89.153. Water supply replacement: rebuttable presumption.
Section 89.153 is a new regulatory 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 the presumption that he is liable for the contamination, diminution or interruption of a water supply.
§ 89.154. Maps.
Section 89.154 describes the contents of mine subsidence control plan maps and 6 month maps. Most of these requirements are existing and have been relocated from § 89.142. Subsection (a) describes the coverage and content of the general mine map which is submitted at the time of permit application. Subsection (b) describes the coverage and content of 6-month maps, which are submitted semiannually during permitted operations.
In subsection (a), the scope of the general mine map has been modified to comply with Federal mapping requirements in 30 CFR 784.20(a)(1). Under the proposal, the map must show all areas where structures may be damaged by mine subsidence, and at a minimum cover the area within a 30° angle of draw of the limits of underground mining. This latter provision is intended to assure that all structures covered by the rebuttable presumption under the federal program are considered in the Commonwealth's subsidence control plans.
Subsections (a) and (b) also list the details which must be shown on subsidence control maps. Many of these details are the same as those required by current regulation. Some additional details have been added in conjunction with the Act 54 amendments to the BMSLCA. The maps must now include all water supplies and all structures covered by subsidence damage repair and compensation provisions. In addition, subsection (a)(6)(x) and (xi) has been added to require the depiction of all utilities listed under § 89.142a(g).
§ 89.155. Public notice.
This section contains public notice requirements which have been relocated from § 89.144. Two additional parties have been added to the list of persons to be notified. Owners of all structures and owners of all utilities must now be notified of proposed mining.
Deleted regulations.
Sections 89.142--89.145 are deleted under this rulemaking. Many of these former provisions are incorporated in §§ 89.142a, 89.154 and 89.155.
E. Summary of Comments and Responses on the Proposed Rulemaking
At its meeting on March 18, 1997, the Board approved publication of proposed amendments. The proposed amendments were published at 27 Pa.B. 2379 (May 10, 1997). Comments were accepted from May 10 to July 9, 1997. A public hearing was held in regard to the proposed rulemaking on June 18, 1997.
Comments were received from 45 persons during the course of the public comment period. Commentators included private citizens, mining interests, utility interests and the Independent Regulatory Review Commission (IRRC). In addition, informal comments were received from the United States Office of Surface Mining Reclamation and Enforcement (OSM).
The comment period associated with the May 10 notice represents the second opportunity for the public to comment on this rulemaking package. In September 1996, the Department conducted an advance notice of proposed rulemaking (ANPR), in which it made draft amendments available for public review and comment. The availability of the ANPR proposed amendments was published at 26 Pa.B. 4693 (September 28, 1996) and a 6-week comment period was provided.
The following is a discussion of comments received on the proposed rulemaking that was published on May 10, 1997.
Definition of ''de minimis cost increase''
One comment was received regarding the proposed definition of ''de minimis cost increase.'' The commentator recommended deleting the $60 per year figure on the basis that it will become obsolete with time.
The Board believes that it is appropriate to retain the $60 figure to define a minimum threshold for requiring compensation arrangements. Long term financial arrangements for amounts less than $60 per year are difficult to maintain because of administration costs. A detailed discussion on the rationale behind the figures included in the definition is provided in the Preamble to the Board's proposed rulemaking on water supply protection/replacement, Chapter 87 and 88 at 27 Pa.B. 2246 (May 3, 1997).
Definition of ''irreparable damage''
Six comments were received regarding the proposed definition of ''irreparable damage.'' One commentator recommended that the term be tied to ability to be repaired rather than cost. Two commentators recommended deleting the reference to structural components because they believed it could be subject to a wide range of interpretations and lead to unnecessary restrictions of full extraction mining. A third commentator recommended that the definition should include damage which renders a structure less strong or less valuable than it was prior to mining. A fourth commentator recommended revising the definition to include criteria relating to the structural stability of the repaired structure and other parameters which insurance companies normally consider when selecting an approach to repair. The fourth commentator also recommended deleting the references to regulations in which the term appears, noting that the references were incomplete and unnecessary.
After reviewing these comments, the Board decided to revise the definition of ''irreparable damage'' based on the recommendations of the fourth commentator. The recommended definition is reasonable and addresses the concerns raised by other commentators. The revised definition includes considerations relating to structural stability, the cost of repairs, compliance with building codes and the presence of architectural characteristics which will require special craftsmanship to restore or replace. It also provides that architectural characteristics need only be considered in cases where the main structure is historically or architecturally significant. The Board believes that the revised definition will facilitate determinations relating to the occurrence or likelihood of irreparable damage.
In regard to the concern about restricting mining, the Board notes that the performance standard in § 89.142a(d) provides three options for dealing with situations when irreparable damage is predicted. An operator may take measures on the surface to reduce the level of damage. An operator may also obtain the consent of the structure owner to allow irreparable damage. As a third option, the operator may restrict mining so as to reduce the level of resultant damage.
The final definition is also revised to delete references to information requirements and performance standards where the term ''irreparable damage'' appears. The term only appears in reference to subsidence damage to structures, so there is no need to qualify its use.
Definition of ''material damage''
One comment was received in regard to the proposed definition of ''material damage.'' The commentator noted that the definition was inconsistent with the Federal definition in that it included physical changes which result in significant loss in production or income to the owner or user of the land. The commentator noted that the Federal definition does not include the phrase ''to the owner or user of the land.''
Since the objective of defining material damage is to conform to the Federal definition, the phrase is deleted in the final definition.
Definition of ''noncommercial building''
One commentator noted that the term ''noncommercial building'' was not defined in § 89.5. The commentator believed that a definition is necessary to ensure that the term includes all structures covered by the Federal definition. The commentator also noted that the term must include ''community or institutional buildings'' to be as effective as the Federal regulations.
A definition of ''noncommercial building'' is included in the final rulemaking. The term is defined in a manner which conforms to the Federal definition.
Definition of ''permanently affixed appurtenant structures''
Four comments were received regarding the proposed definition of ''permanently affixed appurtenant structures''. One commentator was concerned that the term may exclude some structures covered under the Federal program because they are not permanently affixed. One commentator supported the inclusion of customer-owned utilities, while another commentator proposed revising the definition to include all utilities. One commentator also noted errors in the references that were included in the definition.
In regard to the first commentator's concern, the definition of ''permanently affixed appurtenant structures'' includes only those structures which are attached to the ground in a permanent manner. While this definition may not include all structures encompassed by the Federal definition, it does not render the Commonwealth's program less effective than the Federal program. Structures which are not permanently affixed are rarely susceptible to subsidence damage. In addition, the Commonwealth's program addresses damage to certain ''improvements,'' a term which covers many structures that are not ''permanently affixed.''
The Board does not believe it is appropriate to include all utilities in the definition of ''permanently affixed appurtenant structures.'' This could be interpreted to require repair of damage to pipelines owned by investor-owned utilities. The Board does not believe that the BMSLCA authorizes these provisions. The responsibility for repairing damage to investor-owned utilities is governed by the respective property rights of mine operators and utility owners. The final-form regulations therefore retain the reference to customer-owned utilities.
The reference to other structures in the first sentence of the definition is corrected to include § 89.142a(f)(1)(i) and (iii).
Definition of ''public water supply system''
Four comments were received regarding the proposed definition of ''public water supply system''. One commentator believed that the definition may be less inclusive than the Federal definition. A second commentator recommended revising the definition to clarify that hunting camps and resorts are not included. Two commentators questioned the need to include water systems serving public buildings, churches, schools, hospitals and nursing homes since water supplies serving these facilities are already covered by replacement provisions. The commentator further noted that many of the systems covered by the definition could withstand temporary losses of water without creating an imminent hazard to human safety.
No changes were made in response to these comments. In reviewing the Federal regulations, it was noted that the term ''public water supply system'' is not defined in the Federal regulations. Consequently, there is no basis for the assertion that the Commonwealth's definition is less inclusive than the Federal term.
Even though the term is not intended to include hunting camps and resorts, there is no reason to specifically address them in the definition. The current definition includes sufficient criteria to exclude these facilities from coverage. Generally, neither of these facilities have year round residents, nor do they qualify as public buildings, churches, schools, hospitals or nursing homes.
The fact that public water supplies are covered by water supply replacement provisions has nothing to do with the protections afforded to source aquifers and water bodies that serve public water supply systems. These aquifers and water bodies are set aside for special protection under section 9.1(a) of BMSLCA (52 P. S. § 1406.9a(a)). Also, the requirement to prevent material damage to these features is not limited by the qualification that the material damage must also create an imminent hazard to human safety.
Definition of ''rebuttable presumption area''
Two comments were received regarding the proposed definition of ''rebuttable presumption area.'' One commentator noted that the Federal regulations do not include a rebuttable presumption of causation which is applicable to water supply replacement. The commentator further asserted that there is no basis for applying a rebuttable presumption to water supply impacts. The second commentator recommended that the term be revised to reference the 3-year limitation of liability for water supply replacement provided by the BMSLCA.
In response to the first comment, the Board notes that the configuration of the rebuttable presumption area is specified in the BMSLCA. It must therefore be included without regard to its technical basis. The Board does, however, note that the 35° angle used to define the area of probable impacts is generally consistent with figures published by researchers at the Pennsylvania State University and West Virginia University.
The Board does not believe that it is appropriate to insert language relating to the 3-year period of liability. The BMSLCA does not provide for the 3-year limit to serve as the basis for rebutting the presumption of liability. Rather, it provides for an operator to be relieved of liability in cases where water supply impacts occur more than 3 years after the completion of underground mining activities. The 3-year release only applies when the mine is closed and reclamation was completed more than 3 years prior to the time the impacts occurred.
Definitions of ''underground mining'' and ''underground mining operations''
The Preamble to the proposed rulemaking assigned specific meanings to the terms ''underground mining'' and ''underground mining operations'' to distinguish the manner in which these terms are used in the revised regulations. IRRC recommended that the Board formally incorporate these terms and definitions in § 89.5. The Board has included these terms and definitions in the final rulemaking. The term ''underground mining'' is defined to mean the extraction of coal in an underground mine. The term ''underground mining operations'' is defined to include underground mining and other operations which take place underground, such as the operation and reclamation of shafts and adits, the operation of underground support facilities, in situ processing, hauling, storage and blasting.
Definition of ''water supply''
Three comments were received regarding the proposed definition of ''water supply.'' One commentator recommended amending the definition to include the phrase ''as used in this chapter'' to clarify that the meaning of the term does not apply outside the scope of Chapter 89. Another commentator questioned whether the term would include appurtenant delivery systems and water supplies which are used to irrigate noncommercial gardens and agricultural fields like the Federal regulations. A third commentator questioned whether the term would include water supplies used to irrigate noncommercial gardens and agricultural fields.
No changes were made in response to these comments. It is unnecessary to state that the definition of ''water supply'' in § 89.5 applies only to Chapter 89 because the lead sentence in § 89.5(a) already indicates this.
The definition does not include the term ''appurtenant delivery system'' because it is based on the language of the statute, which does not include the term. Further, 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 when the mine operator is required to replace a water supply under § 89.145a.
The definition of ''water supply'' is expected to include all water supplies covered under the Federal program, including those which are used for irrigating noncommercial gardens and noncommercial agricultural operations. The definition only excludes water supplies which are used in production agriculture and serve irrigation systems installed after August 21, 1994.
Predicting hydrologic consequences and protecting the hydrologic balance
Numerous comments were received regarding proposed revisions to §§ 89.35 and 89.36. Section 89.35 was revised to incorporate the Federal requirements to predict whether underground mining activities may result in contamination, diminution or interruption of water supplies within the permit or adjacent area. Section 89.36 was revised to require a description of the measures which will be taken to replace water supplies which are contaminated, diminished or interrupted by underground mining activities.
One commentator recommended that the existing language of § 89.35 be revised to require the use and verification of models to predict hydrologic impacts.
This recommendation was not adopted because models are only one method that a permit applicant may use to develop his prediction. Equivalent or better predictions can often be made by observing and reporting the hydrologic impacts of nearby mines.
Two commentators expressed concern that requirements to predict water supply impacts in § 89.35 and to describe replacement measures in § 89.36 could lead to permit denial, if this information indicated the mining would affect water supplies.
The Board does not believe that a prediction of impacts to water supplies will typically result in permit denial. The general requirement under the BMSLCA is to restore or replace those supplies which are impacted. The prediction in this part is intended to make the operator aware of the extent of his responsibilities and inform the public about the nature of impacts which are likely to occur. Nevertheless, the Department could deny a permit if it determined that mining would eliminate the available water resources over a large area (under authority granted by The Clean Streams Law (35 P. S. §§ 691.1--691.1001)).
One commentator thought that the term ''underground mining activities'' should be replaced with the term ''underground mining'' to clarify that the predictions and descriptions required in §§ 89.35 and 89.36 pertain only to water supplies which are impacted by the extraction of coal in an underground mine.
This recommendation was not adopted because the predictions and descriptions required by these sections must address the hydrologic impacts of the entire mine, including those impacts resulting from underground mining, underground mining operations and activities conducted at surface sites.
Several commentators expressed disappointment that § 89.36 and the regulations in general allowed for the contamination, diminution or interruption of water supplies.
The Board acknowledges the concerns of these commentators but notes that the BMSLCA clearly allows for a water supply to be impacted as long as it is replaced or the affected landowner or water user receives appropriate compensation. The regulations follow the parameters established in the statute by the General Assembly for addressing contamination, diminution or interruption of water supplies.
One commentator recommended that § 89.36 be revised to require site specific descriptions of the replacement measures that will be taken for each impacted water supply. The commentator felt that general descriptions such as ''will drill deeper or wider'' were insufficient.
The Board does not believe that it is necessary to provide details that are applicable to the level of an individual water supply. It is likely that many water supplies in a given area will be able to be replaced by the same means. Further, simple proposals such as drilling to a deeper aquifer may be sufficient if the permit application documents the presence of suitable water in the general area where replacement may be necessary.
One commentator recommended revising § 89.36 to incorporate the statutory provision that ''nothing contained herein shall be construed as authorizing the Department to require a mine operator to provide a replacement water supply prior to mining as a condition of securing a permit to conduct underground mining.''
Section 89.36 is revised to reflect the proviso in section 5.2(j) of the BMSLCA. However, the Board also notes that section 9.1 of the BMSLCA provides that nothing in the act shall be construed to amend, modify or otherwise supersede standards related to the prevailing hydrologic balance requirement of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. §§ 1201--1328) (Federal SMCRA). In accordance with this provision, the Department would have authority to deny permits in situations when mining would eliminate the available water resources over a large area or where a replacement source was not available.
Requirements for support activities
Four comments were received regarding proposed revisions to § 89.67 relating to support facilities. Three of the commentators favored retaining the existing language of the section. Two of these commentators objected to narrowing the scope of the regulation, while the other supported keeping the language the same as the Federal counterpart regulation. Two commentators recommended adding the provision that a mine operator's responsibility to protect utilities would be limited in accordance with its property rights.
The 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.
In regard to concerns about mining rights, the Board believes that it is appropriate to restrict surface operations in the vicinity of utilities without regard to a mine operator's right to mine the coal. Activities at surface sites associated with an underground mine are regarded as surface mining activities and are therefore subject to the Federal SMCRA. Furthermore, the activities which typically take place at surface sites do not involve the mining of coal.
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