[28 Pa.B. 2761]
[Continued from previous Web Page] Subsidence control plans
Numerous comments were submitted regarding proposed revisions to § 89.141(d). Proposed changes included inserting new requirements relating to water supply replacement and repair of subsidence damage and revising language to clarify several existing information requirements.
Two commentators noted that subsidence control plan requirements did not include potential impacts on ''renewable resource lands.'' The commentators noted that Federal regulations require these impacts on renewable resources lands to be assessed.
The Board does not believe it is necessary to revise § 89.141(d) to include references to renewable resource lands. Chapter 89 does not use the term renewable resource lands, per se. Chapter 89 does, however, address aquifers, water supplies, perennial streams and surface lands, to cover all features which may fall within the scope of the term, as it is used in the Federal regulations. Section 89.141(d) currently includes specific references to aquifers, water supplies, perennial streams and surface lands and the means which will be used to protect these features.
One commentator observed that subsidence control plan coverage could be limited to areas within a 30° angle of draw of the proposed mine. The commentator believed that this could provide less coverage than the Federal regulations which require subsidence control plans to consider all areas where the value or reasonably foreseeable uses of structures and renewable resource lands will be diminished by mine subsidence.
The Board notes that § 89.141(d) provides that subsidence control plans must address all areas where structures, facilities and features may be damaged by mine subsidence, and that the 30° angle of draw is only used as a minimum criterion for defining this coverage. Subsidence control plans prepared under subsection (d) should therefore be no less inclusive than those required by the Federal regulations.
Two commentators recommended adding planned and controlled subsidence to the list of available options for protecting public buildings and other structures listed in § 89.141(d)(3) and (6). The commentators also recommended eliminating references to support areas which they assert were eliminated when section 4 of the BMSLCA (52 P. S. § 1406.4) was repealed.
The Board did not adopt this recommendation because planned and controlled subsidence by itself does not meet the intent of the statute. These paragraphs pertain to the special protection afforded to public buildings and facilities, churches, schools, hospitals and impoundments and water bodies with volumes of 20 acre-feet (2.47 hectare-meters) or more. If any of these structures or features are to be subsided, it will usually be necessary to take surface measures in conjunction with planned and controlled subsidence to achieve the necessary level of protection. It is these surface measures which constitute the means of protection rather than the planned and controlled subsidence. Furthermore, there is a need to retain the concept of support areas beneath structures and features which have been set aside for special protection under the BMSLCA. Even if alternative protection measures are proposed, these measures must be taken prior to the time mining advances into the area where it could damage the structure or feature.
Two commentators noted that proposed § 89.141(d)(6) included contradictory provisions. One provision prohibited mining within the support area of public buildings and other protected structures. Another provision required 50% coal support while allowing planned and controlled subsidence if the latter would provide protection equivalent to that provided by coal support.
After reviewing this matter, the Board decided to delete proposed subsection (d)(6) in its entirety. Subsection (d)(6) was found to be both internally inconsistent and repetitive of requirements specified in § 89.141(d)(3). Information requirements relating to the protection of public buildings and facilities, churches, schools, hospitals and other selected features are now covered entirely in subsection (d)(3).
Another commentator thought that the subsidence control plans should include more detailed information concerning the steps to be taken to prevent subsidence damage to utilities, homes and other structures.
In response, the Board notes that the BMSLCA limits the operator's responsibility to prevent material damage to a small list of structures and features, that is, public buildings and facilities, churches, schools, hospitals and large water bodies. Dwellings and certain agricultural structures are protected against irreparable damage but not against lesser levels of damage. While the BMSLCA does protect ''public facilities,'' it does not require the prevention of material damage to investor-owned utilities. Section 89.141(d) requires permit applicants to describe the measures that will be taken to comply with the various performance standards in the statute and the regulations. Generally, this information is provided in a manner that addresses groups of structures. Because of similarities among structures within the same group, the measures that are proposed for a particular group can be expected to apply to any structure within the group. It is usually unnecessary to tailor descriptions to individual structures unless an applicant can predict in advance that a specific structure within a group will require special treatment. In addition, if a new structure is built after permit issuance, approved measures are already in place to provide for its treatment. In some cases, it may be acceptable for an applicant to propose several options so that he can decide upon the best method nearer to the time the structure is undermined.
One commentator recommended using the term ''underground mining'' rather than ''underground mining activities'' and ''underground mining operations'' in § 89.141(d)(6) and (9). The commentator noted that these paragraphs address subsidence concerns which are associated with coal extraction.
The Board agreed with this recommendation and incorporated these revisions into the final-form regulations.
One commentator recommended inserting the terms ''material'' or ''materially'' to modify the word ''damage'' in § 89.141(d) and in paragraphs (2), (3) and (5). The commentator also recommended modifying subsection (d)(5) to clarify that damage minimization measures with respect to dwellings and agricultural structures are only required if ''irreparable damage'' will occur. The commentator further recommended deleting the reference to preventing damage to dwellings, agricultural structures and surface land as found in paragraph (7).
The Board agreed with the commentator's recommendation to use the term ''material damage'' in § 89.141(d)(2), (3) and (5). These changes are in accordance with the protections provided by the BMSLCA. Paragraph (5) has been revised to delete the reference to structures identified in § 89.142a(f)(1) since the specific plans to minimize irreparable damage to a particular structure are best determined near the time of mining rather than at the time of permit application. Paragraph (5) has also been revised to require correction of damage rather than mitigation of damage. No changes were made to paragraph (7) since this requirement only pertains to situations where an operator opts to prevent irreparable damage using a subsidence monitoring program. It is further noted that paragraph (7) restates a Federal program requirement.
One commentator recommended that ''facilities'' associated with churches, schools and hospitals should also be protected against material damage under § 89.141(d)(3) and (6). The Board did not adopt this recommendation.
One commentator asserted that there should be no requirement to minimize subsidence or subsidence-related damage in cases where planned subsidence is proposed. The commentator further asserted that the Federal regulations include this provision.
The Board does not agree with this assertion. Public buildings and facilities, churches, schools, hospitals, large impoundments and water bodies, and aquifers and bodies of water which are significant sources to public water supply systems have been set aside for special protection under the BMSLCA and the Federal regulations. It is, therefore, appropriate to restrict coal extraction when necessary to prevent material damage or reductions in the reasonably foreseeable uses of these structures and features. The Federal program follows the same approach.
One commentator recommended that § 89.141(d)(3) or (6) should be revised to provide for owners of public buildings and facilities, churches, schools and hospitals to waive the protection afforded to their structures under section 9.1 of the BMSLCA.
The Board did not adopt this recommendation because the BMSLCA does not provide that this protection can be waived by the owner of these structures. Even so, it may be possible to conduct full extraction mining under certain protected structures if the structure owner consents and the mine operator takes surface measures to prevent material damage.
Eleven commentators recommended revising § 89.141(d)(11) to require more detailed descriptions of the measures a mine operator will take to protect overlying utilities. One commentator recommended revising subsection (d)(11) to simply restate the Federal requirement and include a provision that notice to the utility company is sufficient to fulfill the utility protection requirement. One commentator recommended that subsection (d)(11) should be revised to require information that will enable the Department to identify situations involving imminent hazards to human safety. IRRC recommended defining the term ''utilities'' to clarify the scope of paragraph (11).
After reviewing these and other comments regarding the protection of utilities, the Board decided to revise the final-form regulations in subsection (d)(11) to require additional information about utilities and the measures which mine operators or utility companies, or both, will take to minimize damage, destruction or disruption in service. This information will enable the Department to identify situations which could lead to imminent hazards to human safety and serve to inform interested members of the public about the measures which will be employed to protect utilities. In some circumstances, proposing notice to the utility owner will constitute a satisfactory protection plan. The Board also added a cross reference to § 89.142a(g) to clarify the specific utilities covered by subsection (d)(11).
One commentator expressed concern that the requirements in proposed § 89.141(d) lacked the clarity needed to guide permit reviewers. As an example, the commentator suggested that the description of potential impacts on overlying structures in subsection (d)(2) could be satisfied by the response there will be no impacts.
The Board does not share this view. Section 89.141(d) was revised to match information requirements with the performance standards in § 89.142a. In addition, § 89.141(d)(3) was added to clarify the requirements for mining beneath public buildings and facilities, churches, schools, hospitals and other protected features.
Mining beneath shallow cover and maximizing mine stability
Several comments were received regarding the proposed revisions to § 89.142a(a). One commentator recommended reinstating the language allowing development of mine openings without the need for stability demonstrations. Another commentator was concerned that the added language on stability demonstrations would open shallow cover areas to mining. The second commentator noted the history of mine subsidence problems associated with shallow cover mining in this Commonwealth.
The Board made no changes to § 89.142a(a) in response to these comments. The purpose of the proposed revisions was to clarify the requirements for mining in areas where the cover is less than 100 feet (30.48 meters). Mine workings in the interval between the surface and 100-foot depth may be unstable due to geologic conditions. The revised regulations require that workings in this interval be designed to be stable, especially in settings where there are overlying structures. Most mine openings should be able to meet stability requirements because they are designed for long-term use.
One commentator recommended deleting the requirement to maximize mine stability in § 89.142a(a)(4). The Board does not believe that it is appropriate to delete this requirement, because it is derived from section 5(e) of the BMSLCA.
Premining structure surveys
Numerous comments were received regarding proposed requirements for premining surveys of structures.
One commentator noted that the Federal regulations require the results of premining surveys to be included in permit applications so that this information is available to the landowner and the public.
The Board does not agree with the Federal concept of requiring survey results to be included in permit applications. Survey results are more accurate if they are obtained nearer to the time of mining. Several years may elapse between the time of permit application and the time a structure is undermined. Over this time the structure owner may make improvements or the structure may undergo natural deterioration which would not be reflected in a survey conducted at the time of permit application. Furthermore, since survey results may include photographs showing the contents of people's homes, there is a reason for keeping this information confidential rather than making it available for public review.
One commentator recommended that § 89.142a(b) includes a listing of landowner's rights so that people do not have to refer to the BMSLCA when reviewing mine operator's requests to gain access to their property.
While this recommendation has some merit, the Board believes that there is little to be gained by attempting to restate these rights in the regulation. It would be unwieldy to incorporate the full text of several sections of the statute in the regulations. Further, any attempt to paraphrase the statute could lead to conflicting interpretations. The Board believes that the best way to apprise landowners of their rights is for the Department to develop information sheets relating to survey requirements and include on those sheets the text of relevant sections of the BMSLCA.
One commentator recommended that surveys should only be required when a structure will undergo planned subsidence.
The Board does not believe that that limitation is appropriate. Except for structures covered by § 89.142a(c), few structures will be afforded support which qualifies as permanent. As a result, there could be instances of unplanned subsidence.
Two commentators recommended that mine operators should be required to submit all survey results to the Department. One commentator questioned how the Department will be able to verify the accuracy of structure survey results if it does not collect the results of every survey.
The Board believes that the statute and the regulations provide sufficient incentives for mine operators to conduct accurate surveys. The intent of the survey is to document premining conditions and damage so that the operator is not required to repair damage which is unrelated to mine subsidence. It is therefore in the operator's interest to conduct a thorough and accurate survey. In addition, the regulations require mine operators to provide copies of survey results to structures owners. The structure owner can report any discrepancies to the Department for follow up investigation.
The Board does not believe it is necessary to require mine operators to submit all survey results to the Department. The Department does not necessarily need to know survey results unless it is called upon to intervene in the resolution of a claim. The provision that the claims need only be submitted to the Department at its request has been included to help ensure the confidentiality of survey information. In addition, the Department can verify whether or not surveys are being conducted by contacting structure owners at random and reviewing information during the course of claim investigations.
One commentator recommended that a provision be added to relieve a mine operator of the requirement to conduct a survey in the event the structure is erected just a few days before mining.
The Board revised § 89.142a(b) to include a provision releasing a mine operator of the requirement to conduct a premining survey when the structure is constructed less than 15 days prior to the date on which the structure will fall within the 30° angle of draw. The Board notes that the release of the responsibility to conduct a survey in no way releases a mine operator from the responsibility to repair the structure if it is damaged.
One commentator recommended deleting the requirement to document components which cannot be repaired or replaced with identical structural components. The Board has responded by revising § 89.142a(b)(1)(i). Surveys must now document architectural characteristics which will require special craftsmanship to replace. In addition, these characteristics must only be documented for structures which are of historical or architectural significance.
One commentator expressed concern that the requirements for documenting denial of access were too vague. After reviewing the requirements of proposed § 89.142a(b)(2), the Board revised paragraph (2) to clarify documentation requirements. Similar changes are also incorporated in § 89.145a(2) relating to surveys of water supplies.
One commentator noted that subsidence effects can extend beyond the 30° angle of draw which is used to determine the timing of surveys. The Board notes that the Department has only documented a few cases when structures were damaged outside the 30° angle of draw. The Board also notes that the Department has established an inspection program in which its inspectors will check for damage outside the 30° angle of draw.
One commentator requested that the regulations include requirements relating to the confidential treatment of survey results and the qualifications of persons conducting surveys.
In response, the Board has added requirements relating to the confidentiality of survey results. Under the final-form regulations, a mine operator must store survey results in a secure location and limit access to them. In addition, survey results may not be released to anyone other than the structure owner or the Department without the structure owner's consent.
Mining beneath and adjacent to public buildings and other protected structures and features
One commentator noted that the Federal regulations in 30 CFR 817.121 do not allow mining beneath public buildings and other protected structures unless the subsidence control plan demonstrates that there will be no material damage or reduction in reasonably foreseeable uses. The commentator questioned the adequacy of 50% coal support and recommended that the support area be configured around a 30° angle of draw. The commentator also questioned whether support areas should be rectangular or conical in shape.
The Board notes that the Department has used the 15° angle of draw, 50% support standard and rectangular support area for protecting structures for over 30 years, and that these criteria have proven effective in preventing material damage. These criteria are already part of Commonwealth's approved program for protecting the structures listed under Federal regulation in 30 CFR 817.121(d). In regard to the shape of support areas, a rectangular support area will be larger and, therefore, offer greater protection than one computed by conical projection. Section 89.142a(c) also includes provisions allowing the Department to increase support area requirements in cases where it believes that the basic standards will not provide sufficient protection.
Two commentators questioned how full extraction could meet the standard for protecting public buildings and other structures.
The Board believes that in some situations full extraction mining could be conducted beneath public buildings and other structures without causing material damage or reductions in reasonably foreseeable uses. In some cases, surface measures could be taken to protect the structures during the occurrence of planned and controlled subsidence. In other cases, an operator may be able to demonstrate that planned and controlled subsidence will not cause material damage based on observations at a comparison site.
One commentator noted that proposed § 89.142a(c) required all alternative mining plans to be supported by engineering reports, geologic information and elevation surveys. The commentator further noted that the previous regulation allowed technical reviewers to determine what information was necessary. The Board has revised § 89.142a(c) to delete this language and simply require the submission of a report demonstrating that the structure or feature will not be materially damaged by mine subsidence.
One commentator recommended deleting the requirement to prevent material damage to the structures listed in § 89.142a(c), noting that some of these structures were listed among those covered by repair and compensation provisions under the BMSLCA.
The Board did not adopt this recommendation because the structures listed in § 89.142a(c) have been identified for special protection under the BMSLCA. The directive in these cases is to prevent material damage or prevent a reduction in the reasonably foreseeable use of the structure. Accordingly, the Board has retained permanent coal support as the default standard for protecting these structures. Mine operators may use alternative measures, but they must first demonstrate that those alternative measures will not allow the onset of material damage or reductions in reasonably foreseeable uses. The statutory requirement to repair these structures only serves to ensure repairs if damage occurs despite the operator's efforts to prevent it.
One commentator noted that the BMSLCA does not necessarily prohibit full extraction mining beneath a perennial stream or aquifer that serves as a significant source to a public water supply system. The Board acknowledges the commentator's observation but notes that the Department has technical guidances which aid permit reviewers in determining when to apply restrictions.
One commentator recommended reinstating coal refuse disposal areas to the list of protected structures and features. The Board did not adopt this recommendation because coal refuse disposal areas are not listed under section 9.1 of the BMSLCA.
One commentator questioned whether contamination would constitute material damage to an aquifer. The Board notes that the contamination of an aquifer is regarded as a hydrologic impact covered by The Clean Streams Law. In addition, the contamination of an aquifer which serves as a significant source to a public water supply system would constitute material damage under § 89.142a(c).
Irreparable damage to dwellings and agricultural structures
Three comments were received in regard to § 89.142a(d).
One commentator recommended that damage to homes should be prevented and another recommended that damage minimization measures should be required when even material damage is predicted. The Board did not adopt these recommendations because the BMSLCA allows for homes to be damaged as long as the damages are repaired or the structure owner is compensated. In addition, the act only specifically provides for damage minimization when a structure is likely to be irreparably damaged.
One commentator noted that the BMSLCA does not require a mine operator to take damage minimization measures unless the Department notifies the operator that irreparable damage is likely to occur. After considering this comment, the Board revised § 89.142a(d) to more closely conform to the BMSLCA. Subsection (d) now requires the Department to notify the mine operator that irreparable damage will occur prior to requiring the operator to take damage minimization measures. Subsection (d) also provides for irreparable damage to occur if the structure owner consents.
Repair of damage to surface lands
One comment was received regarding proposed § 89.142a(e). The commentator recommends that there should be a requirement to restore the land to a condition capable of supporting the value and reasonably foreseeable uses that it was capable of supporting prior to subsidence damage.
The Board believes that the commentator's concern is addressed by the language of the regulation. The concept of restoring the land to its premining value and reasonably foreseeable uses is implicit in the responsibility to correct material damage. The definition of ''material damage'' includes considerations relating to the affected land's capability to support any current or reasonably foreseeable uses and significant losses in production or income.
Repair of subsidence damage to dwellings and other structures
Numerous comments were received regarding § 89.142a(f) relating to the repair of subsidence damage to dwellings and other structures under section 5.4 of the BMSLCA.
Two commentators observed that the dwellings and permanently affixed appurtenant structures built after August 21, 1994, and after the first public notice of the mine permit application were excluded from subsidence damage repair and compensation requirements. The commentators further noted that these structures are not excluded from repair and compensation under the Federal program.
In considering this comment, the Board researched the rules of statutory construction and concluded that appropriate application of the rules directly addresses the commentator's concern. Under the rule of statutory construction known as the ''rule of the last antecedent,'' section 5.4(a) of BMSLCA and § 89.142a(f) are to be interpreted to require an 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. The dates in section 5.4(a) of the BMSLCA and § 89.142a(f) which limit an operator's repair obligations only apply to improvements. As a result of this interpretation, dwellings and permanently affixed appurtenant structures are subject to repair and compensation requirements equivalent to those required by Federal law.
One commentator also observed that repair and compensation requirements only apply to those dwellings and permanently affixed appurtenant structures which are within the boundary of the mine.
Under the rule of statutory construction known as ''the rule of the last antecedent,'' only the ''improvements'' must be within the boundary of the entire mine as depicted in the permit application. Dwellings and permanently affixed appurtenant structures are not subject to this qualification.
One commentator questioned whether structures that are installed beneath the ground would qualify for protection. The Board believes that all structures which are installed beneath the ground would qualify as permanently affixed appurtenant structures. The very aspect of being in the ground causes these structures to be considered permanently affixed.
One commentator questioned whether the requirement to compensate for the reasonable cost of repair would be equal to the Federal requirement to fully repair or compensate. The commentator also questioned who makes the determination as to what is reasonable.
The Board believes that the compensation provided under § 89.142a(f) will equal or exceed that provided by the Federal program in all cases. Both programs should provide equal compensation up to the point when damage is irreparable. In cases involving irreparable damage, the Commonwealth's program offers greater compensation because the amount is determined on the basis of replacement value rather than fair market value. In regard to determining what is reasonable, the Department has the final say.
Two commentators noted that the Commonwealth's regulations do not contain a rebuttable presumption relating to subsidence damage to structures like the Federal program. The Board acknowledges that § 89.142a(f) does not contain a rebuttable presumption relating to subsidence damage. The reason is because the BMSLCA does not provide for one. The Board has, however, made provisions to bring the Commonwealth's program closer to the Federal program on this matter. The premining survey requirements in § 89.142a(b) include provisions for obtaining baseline information prior to the time mining enters the rebuttable presumption area defined in the Federal regulations. The availability of baseline information of structures will facilitate enforcement of subsidence damage repair and compensation requirements.
One commentator questions whether dwellings which are used temporarily, occasionally or seasonally for human habitation qualify for subsidence damage repair and compensation provisions. The Board believes that all dwellings mentioned by the commentator would be covered under § 89.142a(f) if they meet the criteria for being in place at the time underground mining occurs.
One commentator noted that § 89.142a(f) does not provide for prompt repair or compensation in a manner similar to the Federal program. The Board acknowledges that the BMSLCA does not provide for the Department to become involved until the mine operator and structure owner have had 6 months to come to terms. The Board notes, however, that final repairs cannot be completed until subsidence is complete and the land has stabilized. Based on this consideration, final repairs should be completed within the same time frames under both State and Federal programs.
One commentator expressed concern that § 89.142a(f) did not specifically address multilevel mining. The commentator was concerned that once a home is undermined in one seam, operators of future mines in overlying or underlying seams could be relieved of responsibility to repair future damage.
The Board acknowledges the commentator's concern, but believes that this matter is covered by the regulations. Section 89.142a(f) is applicable to individual mines and their associated damages. The only potential problem is the situation when a landowner signs a voluntary agreement releasing a mine operator from damages caused by future mining. In the absence of these agreements, the mine operator would be liable to repair or compensate for subsequent damage resulting from mining additional coal seams.
One commentator noted that the proposed regulation in § 89.142a(f)(2)(i) was missing a reference to structures covered in § 89.142a(f)(1)(i)--(v). The Board has revised the final-form regulation to correct this oversight.
One commentator recommended revising § 89.142a(f) (2)(ii) to require a mine operator to promptly notify a landowner of its decision to replace a damaged agricultural structure with an alternate type structure. The commentator noted that this would allow the mine operator and landowner to work matters out prior to the end of the 6-month negotiation period. While the Board agrees that this recommendation has some merit, it notes that the regulation, as written, allows the mine operator and landowner to work matters out prior to the end of the 6-month period.
One commentator pointed out that subsidence does not necessarily cease within a few months. There are some cases where subsidence continues after 12 years. The Board acknowledges the commentator's concern and notes that § 89.142a(f) does not limit the time frame in which a mine operator is responsible to repair or compensate for subsidence damage. Likewise, there is no limit on the number of times an operator must repair or compensate for damage resulting from successive episodes of subsidence.
One commentator recommended that § 89.142a(f) should include facilities that are associated with buildings which are accessible to the public and noncommercial buildings customarily used by the public. The Board notes that permanently affixed appurtenant structures are covered in association with buildings that are accessible to the public. Other than this specific provision, the BMSLCA does not provide repair or compensation for facilities associated with either of these types of structures.
One commentator noted that §§ 89.142a(f) and 89.143a(b) seem to give the mine operator the choice of repairing or compensating for structural damage. The commentator believed this choice should be left to the landowner. The Board notes that the BMSLCA is silent on which party gets the choice in the matter. In cases when there is a dispute regarding which remedy to apply, the Department would make the final determination after considering the wishes of both the mine operator and landowner. The Board has revised § 89.143(d)(3) to correct this matter.
One commentator noted that the construction of § 89.142a(f)(2)(ii) did not provide compensation for relocation expenses when a structure owner's home was being repaired. The Board acknowledges this error and has corrected this matter in the final-form regulation.
One commentator questioned who is responsible for the safety of livestock and any injury to livestock when agricultural buildings are damaged. The Board acknowledges the commentator's concern, but notes that the BMSLCA does not address this matter. Consequently, any claims relating to injury to livestock would have to be settled through the courts.
Protection of utilities
Over 100 comments were received regarding proposed §§ 89.141(d)(11) and 89.142a(g) relating to the protection of utilities. These comments came primarily from mining and utility interests including gas companies, water companies, sewer authorities and railroads. IRRC also provided comments on these aspects of the regulations.
Utility interests focused on several basic issues. They were concerned that the proposed revisions would strip them of protections afforded in the recent EHB decision in P.U.S.H. Commentators were especially concerned about the deletion of regulations which in their opinion required mine operators to provide coal support or take surface measures to protect utility lines. The utility interests also expressed concern that the proposed revisions could subject their lines and facilities to even more damage than previously allowed. Many commentators believed that the proposed amendments would allow mine operators to fulfill utility protection requirements by merely notifying the utility company of planned mining. Some commentators recommended preventing material damage to vital utilities such as gas and water lines.
In support of their contentions, utility interests submitted information relating to the need to provide additional protection to utilities. Some commentators asserted that the safety of their customers is jeopardized when gas mains and transmission lines and rail lines are undermined. Some commentators representing gas and water utilities asserted that service to large areas can be disrupted when large mains and transmission lines are damaged or must be shut down. Some commentators noted that some utility pipelines are difficult to protect because of their construction, or because they run through streets, buildings or other areas where conventional means of protection will not work. Utility interests also indicated that they incur considerable expenses in taking precautionary measures to prevent damage and in repairing lines which are damaged by mine subsidence and that some of these costs must be passed on to utility customers. Some commentators also felt the language of proposed § 89.142a(g) could make the Commonwealth's regulation less effective than the Federal counterpart regulation.
Mining interests were generally concerned that the proposed revisions could force them to assume a larger role in protecting utilities than they had assumed in the past. Some commentators favored simply reinstating the language of the Federal regulation in 30 CFR 817.180. Mining interests were especially concerned that the proposed amendments could upset the system of rights and responsibilities which existed between mining operators and utility companies for many years. Mining interests also recommended that amendments should focus primarily on maintaining utility service rather than preventing damage to utility lines.
In support of their position, mining interests described situations when tens of thousands of feet of utility lines had been undermined without incident under the current arrangement where mine operators notified utility companies of planned mining and utility companies took precautionary measures at the surface. Some commentators cited examples of situations when utility pipelines were kept in service and left undamaged by subsidence even in the absence of surface precautions. Some commentators also pointed out that certain utilities have the right to acquire coal support by eminent domain. Commentators also noted that the requirement to protect utilities is derived from the Federal regulations and there is nothing in the BMSLCA which affords utilities any specific right to protection. One commentator also noted that courts in Ohio have upheld a miner's right to mine the coal.
IRRC also presented comments in regard to utility protection. IRRC noted that the issue has arisen as to which party is responsible for the cost of mitigating damages incurred by investor-owned utilities. In the IRRC's view, the Department has no authority to make this determination. Rather, the issue is between two parties that would have to be resolved through litigation if an agreement could not be reached. IRRC also recommended that the Preamble to the final-form regulations address the measures mine operators are expected to take in protecting utilities, and that the final-form regulation in § 89.155 requires mine operators to notify utilities of planned mining by certified mail.
One commentator also asked to what extent mine operators were required to protect customer-owned utilities.
The traditional system in which mine operators and utility companies carried out their respective duties in accordance with their respective property rights appears to have been effective in preventing hazards to human safety. Over the past 15 years, the Department has received only two or three reports of significant damage due to the undermining of utility lines. While the occurrence of any incident is unfortunate, the Board believes that this is a commendable record considering the tens of thousands of feet of utility lines which have been undermined.
In addition, the BMSLCA does not afford any specific protections to utilities other than those which may qualify as public facilities under section 9.1 of the BMSLCA. The term ''public buildings and facilities'' was defined to mean those which are owned by a government agency, such as a sewer or water authority. A utility owned by a government agency is covered by §§ 89.141(d)(3) and 89.142a(c).
The Board agrees that the matter of who should bear the costs for taking precautionary measures should be primarily based on which party owns the right of support. When the mine operator owns the right of support, the owner's responsibilities may be limited to providing timely notice to the investor-owned utility operator of imminent mining beneath the utility line. By providing notice to the utility operator, the mine operator may have satisfied § 89.142a(g)(1) and minimized damage, destruction or disruption of utility services. When the investor-owned utility possesses the right to support, a mine operator must provide support and bear the costs associated with providing support. The Board does, however, find that the BMSLCA provides sufficient authority for the Department to intervene in situations which could result in an imminent hazard to human safety without regard to the property rights of either party.
The Board believes that it is appropriate to require a mine operator to take measures to minimize breakage of customer-owned gas and water service connections, since this matter goes more toward protecting coal field residents than investor-owned utilities. The connecting lines are by definition ''permanently affixed appurtenant structures.'' An operator who damages them by subsidence is required to repair them or compensate for the damage.
The Board also believes that it is appropriate to describe acceptable utility protection measures in the regulations and to require subsidence control plans to include information that can be used to assess the potential hazards associated with undermining individual utilities which are located above underground mines. The Board also believes that it is appropriate to provide notification to utility companies whose utility lines may be affected by underground mining.
As a result of its findings, the Board has made several changes to the final-form regulations. Section 89.141(d)(11) is revised to require additional information regarding the nature, use and construction of utilities. Section 89.142a(g) has been revised to restate the Federal regulation in 30 CFR 817.180 and to describe the measures a mine operator may use to minimize damage, destruction or disruption in services provided by a utility. Section 89.155 is revised to require notification of utility owners by certified mail.
Protecting perennial streams
Three comments were submitted in regard to § 89.142a(h) relating to perennial stream protection. This subsection was relocated under this rulemaking but was otherwise left unchanged.
Two commentators expressed concern that the existing requirements for protecting perennial streams were inadequate. The commentators suggested revising the subsection to requiring more intensive sampling and flow measurement. The Board made no change in response to this recommendation. The Board believes that the current regulation in combination with the Department's technical guidance on perennial stream protection (TGD 563-2000-655) provides sufficient protection for perennial streams located above and adjacent to underground mines. Since implementing the guidance in January 1994, the Department has not encountered any situations when perennial streams have been adversely affected by diminution due to underground mining. The Board notes that the subsection applies only to larger streams which flow continuously throughout the calendar year, and that there are interests who believe that its application should be expanded to include smaller streams.
One commentator believed that the subsection on perennial stream protection was in conflict with § 86.102 which prohibits mining within 100 feet (30.48 meters) of a perennial stream. The Board notes that § 86.102(12) provides for the distance between mining and perennial stream to be measured horizontally and not vertically. Section 86.102 pertains only to activities conducted at the land surface.
Prevention of hazards to human safety
Seven comments were received regarding proposed § 89.142a(i) relating to prevention of hazards to human safety.
Three commentators recommended revising subsection (i)(1) to more clearly track the Federal regulation in 30 CFR 817.121(f). Two of these commentators recommended deleting the language referring to the undermining of perennial streams, industrial and commercial buildings, solid waste facilities and hazardous waste facilities. These same two commentators also asserted that there should be no presumed need to suspend mining beneath all commercial structures.
After considering these comments, the Board made several changes to the language of the proposed rulemaking. Paragraph (1) has been modified to clarify that restrictions do not apply unless the Department first determines that there is an imminent hazard to human safety. The list in paragraph (1) remains largely unchanged because it tracks the Federal requirement in 30 CFR 817.121(f) except for its reference to solid and hazardous waste disposal facilities. The Board has decided to retain the reference to solid and hazardous waste disposal facilities but has added language to clarify that considerations will generally focus on those facilities which are lined. Lined facilities are designed to contain contaminants and it is important for the Department to consider the effects of leakage resulting from subsidence damage. Although subsidence to unlined waste disposal facilities is unlikely to cause an imminent hazard, the provisions of subsection (i)(2) will allow the Department to restrict mining beneath an unlined facility if an imminent hazard is identified.
One commentator questioned how perennial streams would pose an imminent hazard to human safety. The Board believes that there could be situations wherein the undermining of a large stream in a populated area would endanger persons residing in the vicinity of the stream. In these situations, subsidence could cause flooding by altering the profile of the stream.
One commentator recommended revising § 89.142a(i)(2) to include an imminent hazard to an individual as opposed to an entire community. The Board believes that § 89.142a(i) applies to situations when there is an imminent hazard to an individual.
Two commentators recommended revising § 89.142a(i)(2) to track the language of section 9.1 of the BMSLCA and to substitute the word ''hazard'' for the word ''danger.'' The Board has revised § 89.142a(i)(2) to track the language of section 9.1 of the BMSLCA. This change involved incorporating the word ''hazard'' in place of ''danger.''
IRRC recommended revising § 89.142a(i) to add the undermining of utilities to the list of conditions which could result in imminent hazards to human safety. The Board accepted this recommendation but opted to incorporate it in § 89.142a(g) which is specific to the undermining of utilities. The Board believes that this approach focuses more attention on the matter.
Procedure for resolution of subsidence damage claims
Seven comments were received regarding proposed § 89.143a.
One commentator pointed out that the Federal regulations require prompt actions by the mine operator and regulatory authority while § 89.143a does not provide for the Department to become involved until 6 months after the claim is filed. The commentator also pointed out that in the worst-case scenario, damage repairs could be postponed for up to 21.5 months. The commentator further noted that under the Federal program the bond must be increased if subsidence damage is not repaired or compensated within 90 days.
The Board acknowledges the commentator's concern, but finds that the BMSLCA does not provide for the Department to intervene in subsidence damage claims for 6 months. The Board does, however, note that the Department has taken steps to encourage landowners to report subsidence damage to the Department as soon as the damage is discovered. This will enable the Department to obtain the facts surrounding the case early in the process. It will reduce the time needed for investigations following the 6-month negotiation period.
The Board also notes that the BMSLCA provides for an escrow program rather than relying on bonding to ensure the satisfaction of subsidence damage claims. An operator is required to deposit sufficient escrow to guarantee satisfaction of the claim to perfect his appeal of a Department order to repair or compensate for subsidence damage. The amount of escrow is established in the Department's order and is payable directly to the landowner if the operator does not prevail in its appeal.
One commentator recommended revising subsection (c) to require the Department to forward any claims it receives from structure owners to the mine operator. The Board agrees that that this is a reasonable request and has revised § 89.143a(c) to require the Department to forward claims to the mine operator.
One commentator recommended that § 89.143a be revised to require the Department to issue an order in the when it does not find a mine operator responsible for causing subsidence damage. The commentator believes that this provision is necessary to ensure that a structure owner can protect his rights by filing an appeal.
The Board does not agree that it is necessary to insert a provision of this nature in § 89.143a. The Department's standard practice is to notify all concerned parties of the results of its findings in regard to a subsidence damage claim. The notification includes the right of a landowner to appeal the Department's determination.
One commentator thought that § 89.143a should be revised to require an affected structure owner to notify the Department as well as the mine operator upon discovering subsidence damage.
The Board did not adopt this recommendation. While the Board believes it is beneficial for the Department to be notified early in the process, it does not wish to imply that this action is mandatory. A requirement of this nature could be interpreted as requiring a structure owner to notify both the Department and the mine operator to perfect his claim.
One commentator expressed general dissatisfaction with the basic provisions of § 89.143a. The Board acknowledges the commentator's concerns, but finds that § 89.143a is in keeping with the BMSLCA.
Relief from responsibility to repair or compensate for subsidence damage
Numerous comments were submitted in regard to § 89.144a relating to the conditions under which a mine operator may be relieved of repairing or compensating for subsidence damage.
Three commentators, including IRRC, recommended revising § 89.144a to include a list of landowners' rights under sections 5.4--5.6 of the BMSLCA. The commentators believe that this listing is necessary to ensure that a landowner can refer to his rights by reading the regulations rather than the statute.
The Board did not adopt this recommendation for the reasons stated with regard to comments on premining surveys. The Board believes that the best way to apprise landowners of their rights is for the Department to prepare and distribute fact sheets and information circulars relating to specific items of concern.
Two commentators noted that § 89.144a appears to be less effective than the Federal program by relieving a mine operator of the responsibility to repair or compensate for structural damage in the case where the operator is denied access to conduct a premining or postmining survey. The commentators note that the effect of denial in the Federal program is simply loss of the rebuttable presumption.
The Board acknowledges this difference between programs, but finds that the effects of denial of access are clearly specified in the BMSLCA. The Board observes, however, that even the OSM may have difficulty enforcing orders to repair subsidence damage when the rebuttable presumption does not apply and there is no premining survey data available to support the claim.
Three commentators expressed concern about the provision that relieves a mine operator of responsibility when a landowner fails to file a claim within 2 years of the date on which damage occurred. One commentator felt that this provision is contrary to requirements of the Federal program. Another believed that this provision could result in releasing an operator of liability for subsequent damage resulting from future subsidence. The third commentator observed that, based on statutory construction, the 2-year limit only pertains to the right to a Department investigation, not to release of liability to repair damage.
In reviewing this matter, the Board has found that the third commentator is correct in asserting that the 2-year limit only pertains to a structure owner's right to a Department investigation of his subsidence damage claim. It does not relieve an operator of the responsibility to repair or compensate for the subsidence damage. Accordingly, the Board has deleted the 2-year reporting limit from the list of conditions under which an operator may be relieved of the responsibility to repair or compensate for subsidence damage. This change also addresses the concerns of the other commentators.
One commentator indicated that the provision for voluntary agreements in § 89.144a could render the Commonwealth's program less effective than the Federal program. The commentator also recommended that the Department should be required to review all voluntary agreements and claims settled in accordance with voluntary agreements.
The Board finds that the BMSLCA clearly provides for the use of voluntary agreements in settling structure damage claims. The Board also believes that it is inappropriate for the Department to become involved in the resolution of claims involving voluntary agreements unless specifically asked to do so by the landowner.
One commentator felt that the 10-day period for granting access to conduct a premining survey was too limiting. The commentator also recommended adding a right of cure for situations where access is not granted because a landowner is out of the country or legally incompetent.
The Board finds that the 10-day period for granting access is clearly stated in the BMSLCA. The Board also believes that a right of cure will be unnecessary in most cases because the notice of the intent to conduct a survey must actually be served upon the landowner. If the landowner is out of the country and does not physically receive the notice, the 10-day period does not begin. The 10-day period does not begin until the landowner receives the notice.
One commentator recommended that § 89.144a should be revised to clarify that the relief from responsibility to repair or compensate for subsidence damage is only applicable to mining that occurs after August 21, 1994.
The Board believes it is unnecessary to incorporate this qualification in § 89.144a. The performance standard in § 89.142a(f) clarifies that a mine operator is only responsible to repair or compensate for damage which results from underground mining on or after August 21, 1994.
One commentator noted that the term ''operator'' should be inserted following the word ''thereafter'' in § 89.144a(a)(1). The Board has incorporated this revision in the final-form regulation.
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