[28 Pa.B. 2761]
[Continued from previous Web Page] Premining water supply surveys
Six comments were received regarding requirements for water supply surveys in proposed § 89.145a(a).
Several commentators questioned the basis for the 1,000-foot (304.80-meter) distance used for determining the timing of surveys. Two commentators indicated that they were aware of situations when water supplies were impacted at greater distances.
The Board has adopted the 1,000-foot criterion based on the Department's recommendation. According to the Department's experience, 1,000 feet is sufficiently conservative to serve as a default parameter for most operating mines. The Department notes that the 1,000-foot distance extends approximately 240 feet (73.15 meters) beyond the rebuttable presumption area for this Commonwealth's deepest mines. The Department acknowledges that mining related effects can extend to distances greater than 1,000 feet, but notes that most cases of this nature are due to peculiar geologic conditions such as fracture zones. The Board also notes that the regulation provides for Department technical staff to adjust this distance based on site-specific conditions.
One commentator questioned if a mine operator was obligated to pay the cost for a premining survey. The Board affirms that this is what the regulation requires.
One commentator also thought that mine operators might limit data collection to supplies which are located within the rebuttable presumption area. The Board notes that the regulation establishes a default distance of 1,000 feet for collecting premining survey data. This will extend beyond the rebuttable presumption area for all Commonwealth mines which are currently in operation.
One commentator questioned what a landowner could do if he disagreed with the results of the premining survey. The Board believes that a landowner would have several options if the landowner disagreed with the survey results. The landowner could arrange to have a certified laboratory conduct an independent survey at the landowner's expense. The landowner could also ask the Department to review the results of the mine operator's survey and conduct additional testing, if necessary.
One commentator recommended revising premining survey requirements to include 1 year of premining data collection. The commentator also thought that operators should be required to submit precipitation data.
While the Board agrees that a full year of sampling would provide a well-founded basis against which to measure impacts, it does not agree that this extensive testing is warranted. In the Department's surface mining program, water supply replacement provisions have been adequately enforced using two background samples and one quantity measurement. It is unnecessary to require operators to provide precipitation data because the Department has access to precipitation data for the entire State.
One commentator questioned the basis for selecting the premining survey parameters given that they represent only a portion of the regulated drinking water parameters.
The Board has adopted the prescribed series of parameters because they are reflective of mining-related impacts. Bacteriological testing has also been added because bacterial contamination is often found in rural areas with wells and septic systems.
One commentator recommended that water supply surveys limit data collection to that which can be readily obtained. The commentator noted that landowners sometimes object to having their wells opened to allow pump tests and water level measurements.
The Board has revised § 89.145a(a) to provide for the collection of information which can be collected without extraordinary efforts or the expenditure of excessive sums of money. The provision is also incorporated in the amendments to the Department's surface mining program published in the Pennsylvania Bulletin on May 7, 1998.
Water supply replacement
Numerous comments were received regarding proposed § 89.145a(b)--(f) which relates to the replacement of water supplies that are contaminated, diminished or interrupted by underground mining.
One commentator observed that the Commonwealth's regulations require water supplies to be replaced to quantity and quality needed to satisfy the current and reasonably foreseeable needs of the water user. The Federal regulations require water supplies to be restored to the quality and quantity of the premining water supply.
The Board acknowledges that there is a difference between State and Federal standards in this regard. The guidelines for replacement, however, are clearly specified in the BMSLCA. In most cases, the Board does not believe that there will be a noticeable difference between a replacement supply meeting the Federal standards and a replacement supply meeting the State standards.
One commentator questioned whether a mine operator would be obligated to replace a water supply located outside the rebuttable presumption area.
The Board notes that § 89.145a(b) clearly provides for the replacement of all water supplies which are contaminated, diminished or interrupted as a consequence of underground mining activities conducted on or after August 21, 1994. This provision applies regardless of whether the affected water supply is inside or outside the rebuttable presumption area.
Several commentators objected to the use of voluntary agreements as a means of resolving water supply problems. The commentators noted that all affected properties must be left with a useable source of water under the Federal program.
The Board acknowledges that there is a difference between State and Federal programs in this regard. However, the use of voluntary agreements is clearly provided for in the BMSLCA. Given the potential need to purchase a property for its fair market value prior to mining, the Board believes that there is sufficient incentive for operators to pursue replacement of water supplies rather than compensate landowners. The Board also notes that the BMSLCA allows the landowner to opt for compensation in lieu of water supply replacement if he chooses.
One commentator noted that the Federal regulations require prompt replacement of water supplies whereas the Commonwealth's regulations seem to allow permanent replacement to be delayed for up to 3 years. The Board acknowledges that according to the BMSLCA, an operator has up to 3 years to resolve a water supply replacement claim. However, this provision allows time for the water supply to recover on its own. The technical literature indicates that many water supplies may recover within 3 years of the impact.
One commentator questioned when a water supply has to be in place to qualify for replacement under § 89.145a(b). The Board interprets § 89.145a to apply to all water supplies that are in place at the time underground mining occurs, if mining occurs after August 21, 1994.
Several commentators expressed concern that an operator did not have to provide temporary water if a water supply was impacted outside the rebuttable presumption area or if a landowner or water user had another available source of water. One commentator asked if carrying water from a spring would constitute an available alternate source of water.
The Board acknowledges that § 89.145a(e) only requires temporary water when the affected water supply is within the rebuttable presumption area and the landowner or water user is without an alternate source of water. The Board notes, however, that the Department has authority to issue orders requiring temporary water in cases where it determines that mining outside the rebuttable presumption area is responsible for impacting a water supply. The Board views a readily available alternate source of water as one which can be quickly connected to deliver water to the point of use. The Board also notes that a temporary water supply must meet the same quality standard as a permanently installed replacement water supply and must provide a sufficient amount of water to satisfy the water user's current needs.
One commentator recommended that the regulation be revised to incorporate a definition for the term ''diminution.'' The Board does not believe the term ''diminution'' needs to be defined. The diminution of a water supply is best determined on a case-by-case basis considering the premining performance of the water supply and the water user's needs.
Several commentators objected to allowing even a de minimis cost increase to go uncompensated. The Board notes that the concept of compensating for the increased operation and maintenance costs of replacement water supplies has been established through case law on surface coal mining. The BMSLCA uses the same statutory language as the Federal SMCRA. It is therefore appropriate to incorporate this concept in water supply replacement regulations.
One commentator objected to allowing mine operators to satisfy their water supply replacement liability by connecting an affected water user to a public water supply system. The commentator felt that water supplies should be replaced in kind. The Board does not agree with this recommendation. A connection to a public water supply system is a reasonable means of replacement if the public water system can satisfy the water user's existing and reasonably foreseeable needs and is adequate for the purposes served.
One commentator felt that a mine operator should not be required to compensate for the increased costs of public water service because of the inherent benefit to the landowner or water user. The Board does not agree with this assertion. Case law provides that compensation is necessary for any increased water supply costs which are greater than de minimis.
One commentator felt that the chlorine in a public water supply system would sicken dairy cattle based on his own experience. The Board has been unable to substantiate this assertion. Communication with animal science experts at the Pennsylvania State University indicate that there should be no adverse long-term effects on cattle.
Two commentators, including IRRC, recommended adding a special criterion to address the water quantity needs of agricultural water users. The commentators believe that many agricultural operations will have to expand in size and increase their water use to remain competitive. The Board has added a criterion to § 89.145a(f)(3) to address this concern.
One commentator noted that the Commonwealth's regulations do not require additional bond to cover water supply replacement like the Federal program. The Board acknowledges this point. The BMSLCA does not authorize requiring a bond to cover water supply replacement. The Board notes, however, that the BMSLCA gives the Department broad authority to issue orders requiring the replacement of affected water supplies and to impose penalties for failure to comply with those orders.
Procedures for resolving water supply damage claims
One commentator questioned how a water user would know if he should be collecting data if he has to substantiate his loss. The Board notes that there are several provisions which will serve to alert the water user if he wishes to collect his own premining survey information. One is the notification letter the water user will receive under § 89.155. Another will be the mine operator's request to gain access to conduct a premining survey prior to the time mining enters into the area where the supply might be impacted. A third is the public notice that the mine operator publishes in a local newspaper at the time of permit application and permit renewal.
Relief of responsibility for water supply replacement
Numerous comments were received regarding proposed § 89.152 which describes the circumstances under which a mine operator may be relieved of the responsibility to replace a water supply.
Several commentators objected to the 3-year limitation on liability and the 2-year reporting limit specified in § 89.152. The commentators noted that the Federal program contains no similar releases of liability.
The Board notes that changes to §§ 89.145a and 89.152 serve to address this concern. By linking water supply impacts to underground mining activities rather than underground mining, liability for replacement extends from the time of underground mining to the period ending 3 years after reclamation has been completed. This should be sufficient to cover virtually all water supply impacts resulting from the underground mine. The limitation regarding reporting impacts within 2 years of their occurrence remains, however, because it is specified in the BMSLCA.
Some commentators also objected to § 89.152 which allows mine operators to settle water supply cases by compensation. These commentators noted that under the Federal program a property must be left with a useable source of water. The Board acknowledges this fact, but notes that compensation is specifically allowed under the BMSLCA. The Board further notes that this provision allows landowners to opt for compensation in lieu of water supply replacement if they so choose.
One commentator indicated that a property's fair market value, on which compensation is based, begins to decline at the time a mine is opened. The Board acknowledges the commentator's concern, but has no basis on which to affirm or dispute this point. The Board further notes that the BMSLCA specifically requires compensation figures to be calculated using the fair market value prior to subsidence.
Rebuttable presumption of causation for impacts to water supplies
Two comments were received regarding proposed § 89.153.
One commentator asserted that the rebuttable presumption provision would make the Commonwealth's program less effective than the Federal program. The other recommended that § 89.153 include that rebutting the presumption does not automatically relieve the mine operator of the responsibility to replace the water supply.
The Board does not agree with the assertion that the rebuttable presumption in § 89.153 will make the Commonwealth's program less effective than the Federal program. The Board notes that the Federal program includes no rebuttable presumption which is applicable to water supply replacement. As a result, the OSM bears the burden of proof in all water supply replacement cases.
The Board adopted the second commentator's recommendation. Simply rebutting the presumption does not relieve the operator of the liability to replace the water supply.
Mapping requirements
One commentator recommended that the general mine maps should extend at least out to the 35° angle wherein water supplies may be impacted.
The Board did not adopt this recommendation. The Board notes that the Department requires various other maps to be included in mine permit applications. These maps typically cover additional area that is well beyond that covered by the general mine map.
One commentator also questioned what other structures would be included in the term ''other structures which are entitled to coal support.''
The Board notes that the term primarily includes structures with support rights and structures for which coal support was purchased under former section 15 of the BMSLCA (52 P. S. § 1406.15) (Repealed). The term would also include oil wells and gas wells with approved pillar plans.
One commentator also recommended requiring mine operators to show permanently affixed appurtenant structures. The Board did not adopt this recommendation because many items such as septic systems, fences and subsurface facilities would be difficult to locate and portray at the conventional scale of these maps.
The Board also notes that additional details regarding the nature and locations of utilities have been added to mapping requirements in response to comments on utility protection.
Public notice
One commentator recommended deleting the requirement to notify residents of structures. The commentator noted that it is often difficult to identify the current tenants of rental properties.
The Board did not adopt this recommendation. The Board believes that mine operators will have the opportunity to identify residents during the course of arranging for and conducting premining surveys.
One commentator recommended deleting certified mail requirements for notice to persons other than owners of record. The Board did not adopt this recommendation. The Board believes that the use of certified mail is a reasonable means of documenting that notifications are being made, as required. The Board also notes that § 89.155 has been revised to incorporate IRRC recommendation that utilities be notified by certified mail.
Department data collection and compilation
Several commentators recommended that the regulations include a section describing the manner in which the Department will satisfy its data collection and analysis responsibilities under section 18 of the BMSLCA (52 P. S. § 1406.18).
The Department contends that it is unnecessary for the regulations to specify the type of information it is collecting. It believes that to do so may inhibit its ability to ask for additional information if it decides to do so in the future. For the benefit of those who are concerned about this matter, the Department wishes to describe the information currently being collected.
For structures--The name of the owner; address; type; year of construction; map name and reference; accessibility to public; type of water supply; premining survey status; postmining survey status; access denied; voluntary agreement in place; owned or rented; nature of damage; Act 54 coverage; the OSM coverage; former section 4 coverage; latitude; longitude; depth of cover; the name of the mine; distance to nearest mining; distance to origin of problem; height of coal extracted in mine; last date of mining; name of coal seam; mining method; multiple seams extracted; associated land damage; mine operator notified by structure owner; the date problem was first noticed; results of communications between mine operator and structure owner; and resolution.
For water supplies--The name of the owner; address; type of water supply; depth of water supply; latitude; longitude; map reference and location; depth of cover distance to nearest mining; angle to nearest mining; distance to origin of problem; angle from origin of problem; the name of the mine; coal seam; rebuttable presumption applicable; multiple seams extracted; release of liability; nature of problem; premining survey status; access denied; date of damage; voluntary agreement in effect; the date problem was first noticed; results of communications between property owner and mine operator; and resolution of claim.
The Department also wishes to advise it has sent written notice to mine operators asking for disclosure on all structure damage claims and all water supply claims which the operators have received since August 22, 1994, the effective date of Act 54. In addition, the Department has hired additional inspection staff to inspect areas which are being undermined by full extraction methods.
Cost benefit analysis
One commentator raises several questions regarding the cost benefit analysis. The commentator believed that the analysis should reflect impacts on people's lives and reductions in property values which occur as a result of underground mining. The commentator also believed that the analysis should compare conditions before and after the adoption of these regulations, rather than comparing conditions before Act 54 and conditions after the adoption of these regulations. The commentator further believed that the benefit to the mining industry should be based on the gross profit realized from the sale of the coal rather than the full sale value of the coal. The commentator also included with his comments information about the effects of waste disposal operations on property values.
After considering the commentator's assertions, the Board revised the cost benefit analysis to reflect the reduction in benefits to the mining industry. The benefit was adjusted from $20 per metric ton to $3.80 per metric ton to reflect the gross profit realized from mining the coal.
The Board did not adjust the cost benefit analysis to reflect property value considerations, because it has no basis for doing so. The property value information presented by the commentator does not pertain to coal mining. This information pertains to highly visible surface activities such as waste disposal sites. It is inappropriate to apply these figures to an activity which is much less visible.
The Board also decided to retain the baseline conditions considered in the cost benefit analysis for the proposed rulemaking. The selected baseline was the condition prior to the passage of Act 54. In this way, the full impact of new provisions can be better assessed.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits
The final-form regulations will benefit underground mine operators and coal field residents whose rights and responsibilities are currently found scattered among State law, State regulation, Federal law and case law. The consolidation of requirements into a single chapter promotes public understanding of these rights and responsibilities.
The final-form regulations will serve to codify benefits already contained in State and Federal law. These include benefits to many structure owners whose structures are damaged by mine subsidence, benefits to landowners and water users whose water supplies are affected by underground coal mining and benefits to mine operators who mine in the bituminous coal fields.
Many structure owners benefit from the expanded subsidence damage repair and compensation requirements imposed under the Act 54 amendments to the BMSLCA. Recent information on mine subsidence damage claims shows that the typical cost of repairing a damaged structure is $30,000 to $40,000. Under the Act 54 amendments, mine operators are responsible to repair or compensate for many of these damages. This results in a benefit to structure owners who would otherwise be forced to absorb these costs or suffer reductions in the value of their properties.
Landowners and water users also benefit from the water supply replacement requirements imposed under the Act 54 amendments to the BMSLCA. Recent estimates show that the costs of replacing a water supply at an underground coal mine site typically run between $5,000 and $10,000. In addition, the cost of providing temporary water may cost between $5,000 to $7,000. Since mine operators are now responsible for the costs associated with replacing water supplies, this represents a direct cost savings to landowners and water users.
Structure owners, landowners and water users will benefit from the premining survey requirements of the regulations. Premining survey requirements are derived primarily from the Federal regulations which define the Commonwealth's primacy requirements. These surveys document the premining condition of structures and water supplies and are crucial to determining impacts and assessing the adequacy of remedial measures. The typical cost of a premining water survey ranges from $500 to $1,500. The typical cost of a premining structure survey ranges from $300 to $800 per property. The requirement that an operator perform these surveys is a benefit to landowners.
Mine operators benefit through the repeal of certain protections which were mandated by the BMSLCA and the regulations prior to the Act 54 amendments. The former protections resulted in mine operators having to leave support pillars beneath certain dwellings and cemeteries. In addition to reducing the amount of coal that could be mined in these areas, the support requirements often interfered with longwall mining, which is a highly mechanized technique. It is estimated that the repeal of these protections will free an additional 105,000 metric tons of coal per year per mine. This figure assumes the elimination of 20 support areas which each contain 5,250 metric tons of coal. At a profit of approximately $3.80 per ton, this equates to a benefit of approximately $400,000 per year to the average operating mine.
Compliance Costs
The compliance costs associated with the final-form regulations include the costs of performing premining surveys, repairing or compensating for subsidence damage to structure, and replacing water supplies affected by mining. Additional costs may also be incurred in taking precautionary measures to prevent irreparable damage to dwellings and agricultural structures and taking measures to minimize breakage of customer-owned gas and water service lines; however, these costs should be offset by the resultant reductions in repair work.
The cost of performing premining structure surveys is estimated to be $11,000 per mine per year. This is based on the assumed need to perform 20 surveys per mine per year at an average cost of $550 per survey.
The cost of performing premining water supply surveys is estimated to be $21,000 per mine per year. This is based on the assumed need to perform 20 surveys per year at an average cost of $1,050 per survey.
The cost of repairing structure damage is estimated to be $210,000 per mine per year. Repair estimates are based on 6 damage incidents per year at an average cost of $ 35,000 per incident.
The cost of replacing water supplies is estimated to be $110,000 per mine per year. This figure assumes the need to provide temporary water to 10 water users at an average cost of $6,500 per service. It also assumes the need to permanently restore or replace 6 water supplies at an average cost of $7,500.
The preceding costs total approximately $352,000 per mine per year. These costs are directly attributable to the Act 54 amendments to the BMSLCA and will be incurred by mine operators irrespective of the proposed regulations. It is notable that the costs incurred by mine operators also represent direct benefits to structure owners, landowners and water users.
Compliance Assistance Plan
The Department will prepare and update program guidances and fact sheets, and hold seminars as necessary to assist mine operators in complying with these final-form regulations. The Department has already conducted similar activities in implementing the Act 54 amendments.
Paperwork Requirements
The primary paperwork associated with the final-form regulations is the correspondence and duplication of materials associated with arranging for premining surveys, reporting survey results and settling damage claims. These costs are insignificant compared to the costs of performing premining surveys and repairing or compensating for damages.
G. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 21, 1997, the Department submitted a copy of the proposed amendments to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments as well as other documentation. In preparing these final-form regulations, the Department has considered the comments received from IRRC and the public. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking.
Under section 5.1 of the Regulatory Review Act, these final-form regulations were deemed approved by the House Environmental Resources and Energy Committee and by the Senate Environmental Resources and Energy Committee on April 13, 1998. IRRC met on April 23, 1998, and approved the final-form regulations in accordance with section 5.1(e) of the Regulatory Review Act.
I. Findings of the Board
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These final-form regulations do not enlarge the proposal published at 27 Pa.B. 2371.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
J. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 89, are amended by amending §§ 89.5, 89.33--89.36, 89.67 and 89.141; adding §§ 89.142a, 89.143a, 89.144a, 89.145a, 89.146a and 89.152--89.155; and deleting §§ 89.142, 89.143, 89.144 and 89.145 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
ChairpersonFiscal Note: Fiscal Note 7-316 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 89. UNDERGROUND MINING OF COAL AND COAL PREPARATION FACILITIES
Subchapter A. EROSION AND SEDIMENTATION CONTROL
GENERAL PROVISIONS § 89.5. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * De minimis cost increase--For purposes of § 89.145a (relating to water supply replacement: performance standards), a cost increase which meets one of the following criteria:
(i) Is less than 15% of the annual operating and maintenance costs of the previous water supply that is restored or replaced.
(ii) Is less than $60 per year.
* * * * * Dwelling--A building or other structure that, at the time subsidence occurs, is used either temporarily, occasionally, seasonally or permanently for human habitation.
* * * * * Fair market value--The amount at which property would exchange hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts.
* * * * * Irreparable damage--Damage to a structure resulting from subsidence which is in one of the following categories. The term includes:
(i) Damage for which the total cost of repair, including improvements required by Federal, State and local law to meet current standards, would exceed the cost of replacement.
(ii) Damage of such magnitude that Federal, State or local law would prohibit repair of the structure.
(iii) Damage that weakens the strength of a structure's foundation, load bearing walls or other load bearing structural components in a manner which would make it impossible or impractical to restore the structure to its previous strength.
(iv) For structures recognized as historically or architecturally significant:
(A) Damage which would adversely affect the structure's historical or architectural value.
(B) Damage for which the cost of repair to restore the historical and architectural value of the structure with the same craftsmanship and historically and architecturally equivalent components would exceed the cost of replacement.
(C) Damage which would be impossible to repair to restore the historical and architectural value of the structure with the same craftsmanship and historically and architecturally equivalent components.
Material damage--Damage that results in one of the following:
(i) Functional impairment of surface lands, structures, features or facilities.
(ii) Physical change that has a significant adverse impact on the affected land's capability to support current or reasonably foreseeable uses or causes significant loss in production or income.
(iii) Significant change in the condition, appearance or utility of a structure or facility from its presubsidence condition.
* * * * * Noncommercial building--A building, other than an occupied residential dwelling, that, at the time the subsidence occurs, is used on a regular or temporary basis as a public building or community or institutional building as those terms are defined in § 86.101 (relating to definitions). The term does not include a building used only for commercial agricultural, industrial, retail or commercial enterprises.
* * * * * Permanently affixed appurtenant structures--A structure or facility securely attached to the land surface if that structure or facility is adjunct to and used in connection with structures listed in § 89.142a(f)(1)(i) and (iii) (relating to subsidence control: performance standards). Examples of these structures include:
(i) Garages.
(ii) Storage sheds and barns.
(iii) Greenhouses and related structures.
(iv) Customer-owned utilities and cables.
(v) Fences and other enclosures.
(vi) Retaining walls.
(vii) Paved or improved patios, walks and driveways.
(viii) Septic treatment facilities.
(ix) Inground swimming pools.
(x) Lot drainage and lawn and garden irrigation systems.
* * * * * Public buildings and facilities--Structures that are owned or leased and principally used by a government agency for public business or meetings and anything built, installed, assembled or used by a government agency to provide a public service. Examples include, but are not limited to, the following:
(i) Government office buildings.
(ii) Police stations.
(iii) Prison complexes.
(iv) Municipal swimming pools.
(v) Municipal utilities.
(vi) Municipal airports.
(vii) Public park pavilions and maintenance facilities.
* * * * * Public water supply system--A water delivery system which does one of the following:
(i) Serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.
(ii) Provides water to a public building, church, school, hospital or nursing home.
Rebuttable presumption area--As used in the context of water supply replacement, the area in which an operator is presumed responsible for diminishing, contaminating or interrupting a water supply. The area is defined by projecting a 35° angle from the vertical from the outside of any area where the operator has extracted coal from an underground mine.
* * * * * Underground mining--The extraction of coal in an underground mine.
* * * * * Underground mining operations--Underground construction, operation and reclamation of shafts, adits, underground support facilities, in situ processing and underground mining, hauling, storage and blasting.
* * * * * Water supply--An existing source of water used for domestic, commercial, industrial or recreational purposes or for agricultural uses, including use or consumption of water to maintain the health and productivity of animals used or to be used in agricultural production and the watering of lands on a periodic or permanent basis by a constructed or manufactured system in place on August 21, 1994, to provide irrigation for agricultural production of plants and crops at levels of productivity or yield historically experienced by the plants or crops within a particular geographic area, or which serves a public building or a noncommercial structure customarily used by the public including churches, schools and hospitals.
* * * * *
Subchapter B. OPERATIONS
INFORMATION REQUIREMENTS § 89.33. Geology.
(a) The operation plan shall include a description of the areal and structural geology in the permit and adjacent area, including the lithology of the strata that influence the occurrence, availability, movement and quality of groundwater that may be affected by the underground mining activities.
(1) For lands within the proposed permit and adjacent areas and over the coal seam to be mined, the description shall include the results of test borings, coal samplings and the stratum immediately beneath the coal seam to be mined, and overlying strata. When an aquifer or existing deep mine below the lowest coal to be mined may be affected, the description shall also include the aquifer or existing deep mine and overlying strata. For mines not underlain by existing deep mines and greater than 200 feet (60.96 meters) below surface drainage, the description need only include the strata down to and including the stratum immediately below the coal seam to be mined. At a minimum, the description shall include:
(i) The location and quality of groundwater.
(ii) The depth, lithology and structure of overburden strata.
(iii) Coal seam thickness.
(iv) Chemical analysis for pollution-forming materials of the stratum immediately above and the stratum immediately below the coal seam to be mined.
(v) Chemical analyses for pollution-forming materials of the coal seam including the sulfur content.
(2) Additionally, for portions of a permit area in which the strata down to the coal seam to be mined will be removed, as in the face up area, test borings or core samples shall be collected and analyzed down to and including the stratum immediately below the lowest coal seam to be mined. For the purposes of this section, boreholes, drill holes, slopes and shafts do not constitute removal of overburden. The following data shall be provided:
(i) Logs of drill holes that show the lithologic characteristics, including physical characteristics and thickness of each stratum, and location and quality of groundwater.
(ii) Chemical analyses of each stratum within the overburden and the stratum immediately below the coal seam to be mined to identify those strata that contain pollution-forming or alkalinity-producing materials.
(iii) Chemical analyses for pollution-forming materials of the coal seam, including the total sulfur content.
(b) An applicant may request that the requirements of subsection (a)(2) be waived in part or in its entirety by the Department. The waiver can be granted only if the Department makes a written determination that the information required by subsection (a)(2) is unnecessary because other information having equal value or effect is available to the Department in a satisfactory form.
§ 89.34. Hydrology.
(a) The operation plan shall contain premining or baseline hydrologic information representative of the proposed permit, adjacent and general areas.
(1) Groundwater information shall include:
(i) The results of a groundwater inventory of existing wells, springs and other groundwater resources, providing information on location, ownership, quality, quantity, depth to water and usage for the proposed permit area and adjacent area. Information on water availability, occurrence and alternative water supplies shall be emphasized and water-quality information relating to suitability for existing premining uses shall be provided. At a minimum, water quality descriptions shall include total dissolved solids or specific conductance corrected to 25°C, pH, total iron, total manganese, alkalinity, acidity and sulfates.
(ii) Other information on the baseline hydraulic and hydrogeologic properties of the groundwater system shall be included with the application. Information on indicator parameters, such as pumping test, lithologic and piezometer data or other appropriate information shall be provided in the application.
(iii) A groundwater monitoring plan under § 89.59 (relating to surface water and groundwater monitoring). The plan shall logically relate to the analysis of the baseline information and the prediction of the probable hydrologic consequences of mining and reclamation required by § 89.35 (relating to prediction of the hydrologic consequences). The plan shall identify monitoring locations and sampling frequency. Water availability, including water levels and yields, and approximate overallrecharge protection shall be emphasized. The plan shall provide for monitoring the minimum group of parameters in § 89.59, plus additional parameters that relate to the suitability of the groundwater for current and approved postming land uses, the protection of the hydrologic balance and locally potential problem causing conditions at or near the mine site.
(2) Surface water information shall include:
(i) A description of streams, valuable impoundments and alternative water supplies. The information shall include the name, location and qualitative and quantitative seasonal flow conditions. Water-quality descriptions, at a minimum, shall include base-line information on total suspended solids, total dissolved solids or specific conductance corrected to 25°C, pH, acidity, alkalinity, sulfates, total iron, total manganese and other locally significant water-quality characteristics. Base-line acidity information shall be provided if acid neutralization is anticipated for the proposed operation. The location of point source discharge and the name and location of the surface stream into which the point source will be discharged shall be provided. The Department may require additional hydrologic information if the predictive evaluation required by § 89.35 indicates that adverse, offsite impacts are likely to occur or, if the data are necessary to properly plan for remedial and reclamation activities.
(ii) A surface water monitoring plan under § 89.59. The plan shall logically relate to the analysis of baseline information and the prediction of the probable hydrologic consequences of mining and reclamation required by § 89.35. The plan shall identify monitoring locations and monitoring frequency. The plan shall emphasize low flows and high flows and their variable quality. The plan shall provide for monitoring the minimum group of parameters in § 89.59, plus additional parameters that relate to the suitability of the surface water for current and approved postmining land uses, the protection of the hydrologic balance and locally potential problem-causing conditions at or near the mine site. Special emphasis shall be given to accurately measuring and documenting the quality and quantity of water discharging from the permit area so that onsite damages can be minimized and offsite damages are prevented to the greatest extent possible.
(b) The Department may require hydrologic tests, including, but not limited to, drilling, infiltration, other aquifer tests and stream flow measurements. The results shall be submitted to the Department.
§ 89.35. Prediction of the hydrologic consequences.
The operation plan shall include a prediction of the probable hydrologic consequences of the proposed underground mining activities upon the quantity and quality of groundwater and surface water within the proposed permit, adjacent and general areas under seasonal flow conditions, and whether underground mining activities may result in contamination, diminution or interruption of any water supplies within the permit or adjacent area. The prediction shall be prepared by a qualified hydrologist or engineer. The probable hydrologic consequences determination shall emphasize the anticipated responses of groundwater and surface water flow, its rate, direction and quality and quantity to the proposed underground mining activities. The prediction shall be based on baseline data collected at the proposed mine site or data statistically representative of the site or a combination of both. The prediction required by this section may be developed using modeling techniques, but the Department may require verification of any models.
§ 89.36. Protection of the hydrologic balance.
(a) The operation plan shall describe, with appropriate maps and cross sections, the measures to be taken to ensure the protection of the hydrologic balance and to prevent adverse hydrologic consequences. The measures shall address:
(1) The quality and quantity of surface and groundwater within the proposed permit and adjacent areas.
(2) The rights of present users to surface and groundwater.
(3) The control of surface and groundwater drainage into, through and out of the permit area.
(4) The treatment, when required, of surface and groundwater drainage from the permit area, and proposed quantitative limits on pollutants in discharges as provided in § 89.52 (relating to water quality standards, effluent limitations and best management practices).
(b) The operation plan shall also describe how the proposed mine development plan will prevent or minimize adverse hydrologic consequences. The plan shall consider:
(1) The location of mine openings to prevent postmining discharges as required by § 89.54 (relating to preventing discharges from underground mines).
(2) Possible alterations in the mine development plan or method of mining in response to adverse impacts on the hydrologic balance as indicated by the groundwater monitoring system.
(c) The operation plan shall include a description of the measures which will be taken to replace water supplies which are contaminated, diminished or interrupted by underground mining activities. An operator is not required to provide a replacement water supply prior to mining as a condition for securing a permit.
PERFORMANCE STANDARDS § 89.67. Support facilities.
(a) Support facilities required for, or used incidentally to, the operation of the underground mine, including, but not limited to, mine buildings, coal loading facilities at or near the mine site, coal storage facilities, equipment storage facilities, fan buildings, hoist buildings, preparation plants, sheds, shops and other buildings, shall be designed, constructed or reconstructed, and located to prevent or control erosion and sedimentation, water pollution and damage to public or private property. Support facilities shall be designed, constructed or reconstructed, maintained and used in a manner which, using the best technology currently available prevents:
(1) Damage to fish, wildlife and related environmental values.
(2) Additional contributions of suspended solids to streamflow or runoff outside the disturbed area. Contributions may not be in excess of limitations of State or Federal law.
(b) Surface mining activities associated with an underground mine shall be conducted in a manner which minimizes damage, destruction or disruption of services provided by oil, gas and water wells; oil, gas and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under or through a permit area, unless otherwise approved by the owner of those surface facilities and the Department.
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