PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CHS. 86 AND 89]
Bond Adjustment and Bituminous Mine Subsidence Control Standards
[33 Pa.B. 4554] The Environmental Quality Board (Board) proposes to amend Chapters 86 and 89 (relating to surface and underground coal mining: general; and underground mining of coal and coal preparation facilities). The proposed rulemaking affects application requirements, bonding requirements and performance standards relating to the restoration of structures and water supplies affected by underground coal mining.
This proposal was adopted by the Board at its meeting of July 15, 2003.
A. Effective Date
The proposed rulemaking will become effective upon publication as a final-form rulemaking in the Pennsylvania Bulletin.
B. Contact Persons
For further information contact Joseph G. Pizarchik, Director, Bureau of Mining and Reclamation, P. O. Box 8461, Rachel Carson State Office Building, Harrisburg, PA 17105-8461, (717) 787-5103; or William Shakely, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding the submission of comments on this proposed rulemaking appears in Section I. Persons with a disability may use the AT&T Relay Service, (800) 654-5988 (voice users). This proposed rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
The rulemaking is proposed under the authority of section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20). Additionally, the rulemaking is proposed under the BMSLCA (52 P. S. §§ 1406.1--1406.21), as amended, and as undergoing modification by a Federal rulemaking to supersede or ''set aside'' six sections of the BMSLCA through an action of the United States Secretary of the Interior. The Secretary's action, taken under section 505 of the Surface Mining Control and Reclamation Act (SMCRA) (30 U.S.C.A. § 1255), will supersede/set aside sections 5.1(b), 5.2(g)--(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. §§ 1406.5a(b), 1406.5b(g)--(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these sections are inconsistent with the SMCRA.
Parts of the rulemaking, which affect bonding requirements for surface mining activities, coal preparation activities and coal refuse disposal, are proposed under the authority of section 5 of The Clean Streams Law (52 P. S. § 691.5), section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b), section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b) and section 1920-A of The Administrative Code of 1929.
D. Background and Purpose
The rulemaking is proposed to satisfy the conditions for maintaining a State primacy program under the SMCRA. To maintain primacy, the Commonwealth must maintain a regulatory program that is as effective as and not inconsistent with the Federal regulatory program. The Commonwealth first obtained primacy in 1982 and, since that time, has updated its regulations as necessary to track changes in Federal law and regulations. This proposed rulemaking is intended to address Federal program changes relating to the repair of subsidence damage to structures and the replacement of water supplies affected by underground bituminous coal mining operations. The following is a brief history of the actions leading up to this proposed rulemaking.
In 1992, the United States Congress enacted the Federal Energy Policy Act (EPACT) (P. L. 102-486, 106 Stat. 2776 (1992)), which amended several Federal statutes, including the SMCRA. The amendments to the SMCRA included the addition of section 720 (30 U.S.C.A. § 1309). Section 720 of the SMCRA was specific to effects on dwellings and related structures and noncommercial buildings and drinking, domestic and residential water supplies in place prior to the time of permit application. It became effective on October 24, 1992.
The General Assembly enacted amendments to the BMSLCA by the act of June 22, 1994 (P. L. 357, No. 54) (Act 54). Act 54 established requirements relating to the repair of structures damaged by mine subsidence and the replacement of water supplies affected by underground mining operations. The amended BMSLCA covered a wider range of structures and water supplies than EPACT and established specific procedures for the resolution of claims. EPACT did not include claim resolution procedures. The Commonwealth amendments were based on the recommendations of an independent mediation group that was convened in the late 1980s to negotiate the needs of landowners and mine operators in this Commonwealth. The Commonwealth amendments became effective on August 21, 1994.
On March 31, 1995, the United States Office of Surface Mining Reclamation and Enforcement (OSM) promulgated final regulations to implement the EPACT provisions. The Federal regulations (60 FR 16722) included broad program provisions, including information requirements, performance standards and bonding requirements to fully implement the provisions of section 720(a) of the SMCRA.
On July 28, 1995, OSM announced the implementation of a dual enforcement program in this Commonwealth. OSM recognized that the Commonwealth's law did not mirror the provisions of the 1995 Federal regulations in scope or effective date. Under dual enforcement, the Department enforced the provisions of the amended BMSLCA and OSM enforced section 720(a) of the SMCRA and the provisions of the 1995 Federal regulations in cases where damages were outside the scope of the BMSLCA. OSM enforcement activity focused primarily on damages that occurred between October 24, 1992 (the effective date of EPACT) and August 21, 1994 (the effective date of Act 54).
On March 17, 1998, the Board promulgated a final-form rulemaking, published at 28 Pa.B. 2761 (June 13, 1998), to codify the provisions of Act 54. The final-form rulemaking also included definitions and requirements to clarify the statutory provisions of Act 54 and to facilitate their implementation.
On July 29, 1998, the Department submitted the amended BMSLCA and the final-form rulemaking published at 28 Pa.B. 2761 to OSM for approval as part of the Commonwealth's approved primacy program. The submission was identified as PA-122 in the Federal tracking system.
On December 27, 2001, OSM published its findings regarding the Commonwealth's July 29, 1998, program amendment in the Federal Register at 66 FR 67010 (OSM Rule). The OSM Rule approved the Commonwealth's program amendment with the exception of 47 items that were found to be less effective than corresponding provisions of the Federal program. Twenty-two of the items related to provisions of the BMSCLA and 25 items related to the Commonwealth's regulations. The OSM Rule also directed the Commonwealth to amend its law and regulations to resolve the issues that were the basis for its disapproval. The revisions required by OSM are set forth in 30 CFR 938.16(hhhh)--(bbbbbb).
On February 25, 2002, the Department submitted an informal proposal to OSM describing the changes it was prepared to make in regard to 15 of the 47 requirements in the OSM Rule. The proposal also identified those sections of the BMSLCA which the Department thought OSM must supersede/set-aside under section 505(b) of the SMCRA to accommodate the proscribed regulatory amendments.
On February 25, 2002, the Department also filed a Federal lawsuit challenging portions of the OSM Rule. The Pennsylvania Coal Association also filed a Federal lawsuit challenging the OSM Rule. The two cases were consolidated. Petitions to intervene were submitted by the Pennsylvania Coal Association and the Tri-States Citizens Mining Network. Active litigation was delayed pending the outcome of negotiations. The Department and OSM agreed that proposed solutions would be finalized through the completion of State and Federal rulemaking processes.
Between March 2002 and January 2003, the Department and OSM met in a series of discussions to resolve differences over issues raised by the OSM Rule. The Department and OSM also sought and received input on draft solutions from the Tri-States Citizens Mining Network and from the Pennsylvania Coal Association. As a result of these discussions, the Department and OSM reached agreement on proposed resolutions of all 47 items in the OSM Rule. The draft solutions would be finalized through State and Federal rulemakings. Eight issues are to be resolved without the need for statutory or regulatory amendments. The remaining 39 issues, including the 15 the Department had previously decided to change, are to be resolved through the proposed amendments to Commonwealth regulations shown in Annex A. The final resolution also provides for an action by the Secretary of the Interior to supersede/set aside six provisions of the BMSLCA to the extent that they conflict with the SMCRA. These provisions will be superseded/set aside through Federal rulemaking. Additional information regarding the resolution of issues identified in the OSM Rule is available in the Commonwealth's Formal Amendment in Regard to 30 CFR 938.16(hhhh)--(bbbbbb) from the contact persons identified in Section B.
After this proposal was approved as proposed rulemaking by the Board, the Department formally submitted a program amendment titled Formal Amendment in Regard to 30 CFR 938.16(hhhh)--(bbbbbb) to OSM. This formal program amendment addresses all 47 items in the OSM Rule, including the amendments being proposed by this proposed rulemaking. OSM will publish notice of receipt of the formal amendment in the Federal Register and will begin the Federal approval process. OSM will also initiate a separate Federal rulemaking to supersede the previously mentioned six provisions of the BMSLCA to the extent they are inconsistent with Federal law. Parts of this proposed rulemaking are predicated upon completion of the Federal rulemaking to supersede portions of the BMSLCA. The two Federal rulemakings and this proposed rulemaking will proceed concurrently through their respective rulemaking procedures.
The public is encouraged to review and comment on the two Federal rulemakings and this proposed rulemaking. Information concerning the publication of the two Federal rulemakings in the Federal Register can be obtained from the previously identified contact persons. To simplify the process and to facilitate the public comment process the Board's two public hearings will be held on the same days as the OSM public hearings. The State public hearings and the Federal public hearings will be held sequentially--with one hearing following the other--and they will be held at the same location. The Board will consider the OSM hearing transcripts, written presentations, exhibits and copies of all comments submitted to OSM to allow for the Board to consider all comments pertinent to this proposed rulemaking.
The amendments proposed in this rulemaking represent the outcome of negotiations between the Department and OSM. The proposed rulemaking will make Commonwealth requirements relating to the repair of subsidence damage and replacement of water supplies at underground mining operations as effective as and not inconsistent with those of the Federal program in all respects. This proposed rulemaking is part of the Commonwealth's continuing effort to maintain primary enforcement responsibility over coal mining activities within this Commonwealth.
The proposed rulemaking was discussed with representatives of the underground coal mining industry on February 18, 2003, and with representatives of coalfield citizens' organizations on February 19, 2003. Both groups also provided input on a preliminary resolution document dated July 2002.
The proposed amendment to § 86.152(a) (relating to bond adjustments) was discussed with the Mining and Reclamation Advisory Board (MRAB) because the proposed amendment will affect bonding requirements of all types of coal mining activities, including surface coal mining. At its January 9, 2003, meeting, the MRAB asked the Department to modify its original proposal to conform more closely to the Federal counterpart in 30 CFR 800.15. The Department subsequently revised its proposal to comply with the MRAB's request. On April 24, 2003, the MRAB approved the revised proposal with the condition that the preamble to the proposed rulemaking include an explanation of how amended § 86.152(a) will apply to mine subsidence bonds. The approved version of § 86.152(a) and requested explanation are included in this proposed rulemaking. The other provisions of this proposed rulemaking were not presented to the MRAB because the MRAB's authority does not extend to underground mining.
E. Summary of Regulatory Requirements
§ 86.151(b)(2) (period of liability)
Under the proposed amendment to § 86.151(b)(2) (relating to period of liability), the undefined term ''mining and reclamation operation'' is deleted and replaced with ''underground mining operations,'' which is defined in § 89.5 (relating to definitions). This amendment clarifies that the period of liability for which a subsidence bond is held is 10 years after completion of underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting. The period of liability for subsidence bonds is not connected to post closure mine pool maintenance. This amendment is being made to clarify that the amendments made to the definition of ''underground mining activities'' do not change the period of time the subsidence bond is held. ''Underground mining activities'' is being modified, as described later, to clarify that stabilization of the post-closure mine pool marks the beginning of the final 3-year period in which an operator remains liable for contamination, diminution or interruption of water supplies.
§ 86.152(a) (bond adjustments)
Under the proposed amendment to § 86.152(a), the first sentence of subsection (a) is deleted and replaced with language similar to 30 CFR 800.15(a) and a clarification is added to the last sentence. The first amendment clarifies that the Department is obligated to adjust the amount of bond when it determines that the area requiring bond coverage has increased or decreased or when the cost of future reclamation changes or where the projected subsidence damage repair liability changes. It also allows the Department to specify periodic times or to set a schedule for reevaluating and adjusting the bond amounts. For details on when subsidence bond for structure damage will be adjusted see Technical Guidance Document 563-2504-101. The second amendment clarifies that § 86.152(a) does not expand the types of liabilities the subsidence bond covers. The BMSLCA specifically identifies what the subsidence bond covers. See section 6(b) of the BMSLCA (52 P. S. § 1406.6(b)). Proposed § 86.152(a) does not authorize the subsidence bond to be adjusted to cover water supply replacement liability.
The proposed amendment to § 86.152(a) is included in this rulemaking to address two Federal requirements. First, the proposed rulemaking will affect adjustment of reclamation bonds for all coal mining activities. In doing so, it will satisfy an OSM requirement raised in regard to other aspects of the Commonwealth's coal mining regulatory program. In a letter dated September 22, 1999, OSM directed the Commonwealth to revise its bonding requirements to make bond adjustments mandatory for coal mining activities that were subject to full cost bonding. Since 1999, the Department has converted all active surface mining permits from an alternative bonding system to conventional bonding also known as full cost bonding. As a result, the requirement for mandatory bond adjustment now applies to reclamation bonds for all coal mining activities. The proposed amendments to § 86.152(a) will satisfy the requirement in the September 22, 1999, letter by requiring mandatory bond adjustments for all coal mining activities that are now bonded at the full cost of reclamation.
The proposed amendment also addresses the Federal requirement in 30 CFR 938.16(ccccc) (regarding bonds posted to ensure the repair of EPACT structures and the replacement of EPACT water supplies. OSM had found the Commonwealth's bonding requirements to be less effective than Federal counterpart requirements because there was no requirement for operators to post additional bond when individual claims of subsidence damage or water supply impact were not resolved within 90 days. During discussions with OSM on this issue, the Department apprised OSM that the Commonwealth's subsidence bonding requirements, although different in approach, were no less effective than those of the Federal regulations with respect to ensuring the repair of structure damage because what the Department was now requiring was significantly different than what OSM had found to be less effective.
During the period of time OSM was considering the program amendments, the Department, in response to court decisions, changed its subsidence bond requirements. OSM was informed that instead of a minimum $10,000 subsidence bond, operators are now required to post a subsidence bond in an amount which is based on the extent of anticipated subsidence damage and the value of surface property within the approved subsidence control plan area. The Department reevaluates the potential liability at each permit renewal and whenever the permit is amended to modify the subsidence control plan area or mining method. The subsidence bond must be posted prior to permit issuance rather than at the time of damage. Detailed procedures are described in Technical Guidance Document 563-2504-101. OSM has tentatively agreed that the Department's approach to calculating the required amount of subsidence bonds is no less effective than the approach described in the Federal regulations. OSM has, however, found that § 86.152(a) must be amended to clarify that the Department has a mandatory obligation to adjust the amount of a subsidence bond when periodic evaluation, performed in accordance with the Department's technical guidance, indicates a change in potential repair liability. The proposed amendment to § 86.152(a) accomplishes this objective by requiring an adjustment to the bond amount when a periodic evaluation indicates a change in the subsidence control plan area or a change in the extent of subsidence damage expected within that area. The proposed rulemaking will satisfy the Federal requirement in 30 CFR 938.16(ccccc) with respect to liability for subsidence damage to EPACT structures.
The proposed amendment does not address OSM's requirement in regard to bonds for water supply replacement. Section 6(b) of the BMSLCA is limited to bonds for structure damage and does not address bonds for purposes of ensuring the replacement of water supplies affected by underground mining operations. The Department will satisfy this aspect of 30 CFR 938.16(ccccc) by requiring operators to carry appropriate insurance coverage in accordance with § 86.168 (relating to terms and conditions for liability insurance) or by accepting other financial assurance instruments which meet the requirements of the law. Consequently, this rulemaking does not propose to add additional bonding requirements for water supply restoration or replacement.
§§ 86.1 and 89.5 (definitions of ''underground mining activities'' and ''underground mining operations'')
The proposed rulemaking includes a revised definition of the term ''underground mining activities'' in § 86.1 (relating to definitions) and § 89.5 and a revised definition of the term ''underground mining operations'' in § 89.5. These amendments are proposed to clarify the conditions that trigger certain regulatory requirements under existing and proposed regulations.
One proposed amendment amends the definition of ''underground mining activities'' to clarify that the management of the pool that develops in underground mine workings after mine closure is an underground mining activity. These pools may cause contamination of adjacent water supplies triggering the need for restoration and replacement. The BMSLCA requires mine operators to replace all water supplies affected by their underground mining activities and extends this requirement for 3 years after all mining activity has ceased. Since management of the postclosure pool will normally be the last activity involved in the reclamation of an underground mine, it is appropriate to clarify that this activity is within the scope of the definition. The Department has historically considered the management of the postclosure mine pool to be part of an underground mining activity and has held operators liable for the effects of the pool. The proposed amendment is intended to codify the Department's interpretation and, in addition, to demonstrate that the Commonwealth's regulations are as effective as the Federal regulations in regard to the scope and duration of liability for water supply effects.
Another proposed amendment amends the definition of ''underground mining operations'' to clarify that the term only includes those operations that take place in the subsurface parts of an underground mine. Within the definition, the term ''underground support facilities'' is replaced with ''support facilities located underground.'' The proposed amendment eliminates the possibility that the underground mining operations could be construed to include operations at a surface support facility, such as a coal storage site, bathhouse or mine drainage treatment plant located at the surface. This amendment is necessary to clarify the scope of the term ''underground mining operations,'' which is inserted in many information and performance standards under this proposed rulemaking. A parallel change is proposed in subparagraph (ii) of the definition of ''underground mining activities,'' which repeats the definition of ''underground mining operations.''
§ 89.5 (definition of ''EPACT structures'')
The proposed rulemaking includes the addition of the term ''EPACT structures'' and an associated definition in § 89.5. The term is used to identify structures covered under section 720(a) of the SMCRA and corresponding Federal regulations. It is used to facilitate reference to structures that are subject to minimum information and performance standards under the Federal regulations. The use of the term also indicates the basis for special requirements or restrictions that are derived from the Federal regulations.
The proposed definition includes all structures that fall within the scope of the Federal terms ''occupied residential dwellings and structures related thereto'' and ''noncommercial buildings.'' These terms are used in section 720(a) of the SMCRA to define the scope of Federal subsidence damage repair and compensation requirements. Although these terms are not defined in the SMCRA, they are defined in 30 CFR 701.5.
The definition of ''EPACT structures'' draws on various terms that are currently defined in § 89.5 and 30 CFR 701.5. The definition incorporates the terms ''dwelling'' and ''noncommercial building,'' which are defined separately in § 89.5. These terms effectively capture all structures that fall within the scope of the Federal terms ''occupied residential dwellings'' and ''noncommercial buildings.'' The definition also includes structures that are adjunct to or used in conjunction with dwellings to capture those appurtenant structures that fall within the scope of the Federal term ''occupied residential dwellings and structures related thereto.''
§ 89.5 (definition of ''EPACT water supplies'')
The proposed rulemaking includes the addition of the term ''EPACT water supplies'' and an associated definition in § 89.5. The term is used to identify water supplies covered under section 720(a) of the SMCRA and corresponding Federal regulations regarding water supply replacement. It is used to facilitate reference to water supplies that are subject to minimum information and performance standards under the Federal regulatory program. The use of the term also indicates the basis for special requirements or restrictions that are derived from the Federal regulations.
The proposed definition includes all drinking, domestic and residential water supplies from a well or spring in existence prior to the application for a permit, as specified in section 720(a) of the SMCRA. It further describes ''drinking, domestic and residential water supplies'' as wells and springs and the appurtenant delivery systems that provide water for direct human consumption or household use, drawing from the definition in 30 CFR 701.5. The definition specifically excludes wells and springs that serve only agricultural, commercial or industrial enterprises except to the extent the water supply is for direct human consumption or human sanitation or domestic use.
§ 89.5 (definition of ''permanently affixed appurtenant structures'')
The proposed rulemaking include several changes affecting the scope of the term ''permanently affixed appurtenant structures.'' These amendments are in response to 30 CFR 938.16(fffff) of the OSM Rule, which requires the phrase ''securely attached to the land surface'' to be deleted from the existing definition in § 89.5. OSM reasoned that the phrase could be interpreted to exclude structures that would fall within the scope of the Federal term ''occupied residential dwellings and structures related thereto.'' Under the Federal regulations, all ''occupied residential dwellings and structures related thereto'' are covered by damage repair and compensation requirements regardless of their attachment to the land surface.
The proposed rulemaking addresses the OSM requirement by deleting the existing term and definition in § 89.5 and incorporating descriptions of permanently affixed appurtenant structures in the performance standard under § 89.142a(f) (relating to subsidence control: performance standards). This approach allows permanently affixed appurtenant structures to be divided into two groups depending on whether they fall within or outside the scope of the Federal regulations. Permanently affixed appurtenant structures that qualify as EPACT structures, based on their relationship to a dwelling, are described in amended § 89.142a(f)(1)(iii). There is no requirement for these structures to be securely attached to the land surface. The second group of permanently affixed appurtenant structures is presented under amended § 89.142a(f)(1)(i). These permanently affixed appurtenant structures are eligible for repair and compensation provisions under the BMSLCA based on their relationship to a building that is accessible to the public. The permanently affixed appurtenant structures in this group are not EPACT structures and therefore remain subject to the qualification regarding secure attachment to the land surface.
The proposed rulemaking will satisfy the requirement of the OSM Rule while preserving the provisions of the BMSLCA to the extent possible. Permanently affixed structures that are adjunct to or used in conjunction with dwellings need not be securely attached to the land surface to qualify for damage repair and compensation. Permanently affixed appurtenant structures that are adjunct to or used in conjunction with buildings that are accessible to the public must be securely attached to the land surface to qualify for damage repair and compensation.
§ 89.141(d) (plans for mining beneath EPACT structures)
The proposed rulemaking includes several amendments to § 89.141(d) (relating to subsidence control: application requirements), which affect the contents of subsidence control plans. The amendments involve the addition of paragraphs (9) and (10), which require descriptions of the measures the operator will take to protect EPACT structures. The new requirements reflect 30 CFR 784.20(b)(5) and (7).
Proposed subsection (d)(9) requires a description of the measures an operator will take to minimize damage to EPACT structures when using a mining method that results in planned subsidence. The description must address the measures the operator will take to comply with the corresponding performance standard in § 89.142a(d)(1)(i). The addition of this paragraph is proposed in response to 30 CFR 938.16(ggggg) of the OSM Rule.
Proposed subsection (d)(10) requires a description of the measures an operator will take to prevent damage to EPACT structures when using a mining method that does not result in planned subsidence. The description must address the measures the operator will take to comply with the corresponding performance standard in § 89.142a(d)(1)(ii). The addition of this paragraph is proposed in response to 30 CFR 938.16(hhhhh) of the OSM Rule. The effect of this proposed amendment will be minimal since operators are currently required to describe measures for maximizing mine stability in areas where the mining method does not result in planned subsidence.
§ 89.142a(c) (suspension of mining)
The proposed rulemaking includes an amendment to § 89.142a(c)(3), regarding protection of public buildings and facilities, churches, schools, hospitals, impoundments with storage capacities of 20 acre-feet or more, bodies of water with volume of 20 acre-feet or more and aquifers and bodies of water that serve as significant sources to public water supply systems. The proposed rulemaking authorizes the Department to suspend mining when an operator's measures fail to adequately protect one of the designated structures or features and to require the modification of subsidence control plans to prevent further damage. The proposed language mirrors the Federal requirement in 30 CFR 817.121(e). The amendment is proposed to satisfy the requirement in 30 CFR 938.16(iiiii) of the OSM Rule.
§ 89.142a(d) (requirements for mining beneath EPACT structures)
The proposed rulemaking includes the addition of new requirements regarding the prevention or minimization of damage to EPACT structures. The requirements have been added to § 89.142a(d). The proposed amendments are based on the Federal requirements in 30 CFR 817.121(a) and apply to mining beneath all EPACT structures except for noncommercial buildings, such as public buildings, churches, schools and hospitals, which are subject to higher levels of protection under § 89.142a(c). The new requirements are in § 89.142a(d)(1). Paragraph (1) is further subdivided to specify requirements for different types of mining.
Paragraph (1)(i) addresses situations where EPACT structures are undermined using a mining technology that results in planned subsidence. Under the proposed rulemaking, if mining will result in the planned subsidence of an EPACT structure, the operator must take measures that are necessary and prudent, consistent with the mining method employed and technologically and economically feasible, to minimize material damage. There are two exceptions to this general requirement. One is where the structure owner consents, in writing, to allow the damage to occur. The other exception is where the operator determines that the costs of the measures would exceed the anticipated cost of repairs and the anticipated damage will not constitute a threat to health or safety.
Paragraph (1)(ii) describes a separate set of requirements that apply in situations where EPACT structures are undermined using a mining technology that does not result in planned subsidence. In these situations, mine operators must take measures consistent with known technology to prevent subsidence and subsidence-related damage to the extent technologically and economically feasible. Subparagraph (ii) includes a list of measures that may be applied to comply with the damage prevention requirement.
The proposed amendments are included in this rulemaking to satisfy the requirement in 30 CFR 938.16(jjjjj).
§ 89.142a(f)(1) (prompt response to structure damage claims)
Proposed amendments to § 89.142a(f)(1) include the addition of a requirement for ''prompt'' action in regard to an operator's obligation to rehabilitate, restore, replace or compensate for material damage to designated structures. This requirement is proposed in response to 30 CFR 938.16(tttt) and (kkkkk) of the OSM Rule and is based on the specific language of section 720(a)(1) of the SMCRA. The term ''prompt'' is not defined in the SMCRA or the Federal regulations. Federal preamble discussions indicate that decisions regarding ''promptness'' should take into account site conditions, potential repair and compensation alternatives and other relevant factors (66 FR 67023). Under amended § 89.142a(f)(1), decisions regarding promptness would be based on the same considerations.
§ 89.142a(f)(1) (requirements for dwellings, permanently affixed appurtenant structures and improvements to be in place on specific dates)
The proposed rulemaking also includes an amendment to § 89.142a(f)(1)(iii) which describes a subset of the structures covered by the Commonwealth's subsidence damage repair and compensation provisions. Subparagraph (iii) includes the group ''dwellings, permanently affixed appurtenant structures and improvements.'' Under the proposed rulemaking, the phrase ''in place on August 21, 1994, or on the date of first publication of the application for a coal mining activity permit or a 5-year renewal thereof for the operations in question and within the boundary of the entire mine as depicted in the application'' is deleted. This amendment is in response to 30 CFR 938.16(uuuu) and (lllll) of the OSM Rule, which require the removal of this qualification.
Subparagraph (iii) is also amended to include a description of the structures that fall within the scope of the term ''permanently affixed appurtenant structures.'' The reasons for this amendment are addressed in a separate part of this preamble. In combination, the proposed amendments ensure that subparagraph (iii) includes all structures that fall within the scope of the Federal term ''occupied residential dwellings and structures related thereto.'' These amendments effectively extend the subsidence damage repair and compensation provisions of § 89.142a(f) to all dwellings, permanently affixed appurtenant structures and improvements in place at the time of mining.
The proposed rulemaking requires a Federal action to supersede/set aside the language in section 5.4(a)(3) of the BMSLCA, which constitutes the basis for the exclusionary phrase in § 89.142a(f)(1)(iii). The Federal action is required under 30 CFR 938.16(uuuu) of the OSM Rule.
§ 89.143a(c) (filing structure damage claims)
Proposed amendments to § 89.143a(c) (relating to subsidence control: procedure for resolution of subsidence damage claims) include deletion of the phrase ''within 6 months of the date that the building owner sent the operator notification of subsidence damage to the structure.'' The deletion of this phrase clarifies that owners of damaged structures may file claims with no minimum waiting period. The amendment is proposed in response to 30 CFR 938.16(xxxx) and (nnnnn) of the OSM Rule. The existing language was disapproved because it could interfere with the provision of ''prompt'' repair or compensation.
§ 89.143a(c) (statute of limitations for filing structure damage claims)
The proposed rulemaking also amends § 89.143a(c) to clarify the time frames in which landowners must file claims for structure damage with the Department. The proposed amendment deletes language that requires claims for EPACT structures to be filed within 2 years of the date of damage. This amendment clarifies that the 2-year deadline cannot serve as a statute of limitations for filing claims for damage to EPACT structures. This amendment is proposed to satisfy the requirements of 30 CFR 938.16(xxxx) and (nnnnn) of the OSM Rule. The deletion of this provision requires a Federal action to supercede/set aside section 5.5(b) of the BMSLCA to the extent it establishes a 2-year statute of limitations on filing subsidence damage claims for EPACT structures.
The proposed rulemaking also clarifies that a 2-year filing deadline still exists in regard to claims involving damage to non-EPACT structures. This reflects the provisions of section 5.5(b) of the BMSLCA which are beyond the scope of the Federal set aside action. Under this proposed rulemaking, the owner of a non-EPACT structure remains obligated to file a claim within 2 years of the date of damage.
§ 89.143a(d) (investigations and orders relating to the repair of structure damage)
Proposed amendments to § 89.143a also include an amendment to subsection (d). Subsection (d)(1), as amended, requires the Department to provide the results of its investigation to the property owner and mine operator within 10 days of completing the investigation. With this amendment, Commonwealth procedures for responding to citizen complaints will conform to Federal standards for timeliness. This amendment is proposed in response to 30 CFR 938.16(yyyy) of the OSM Rule.
Subsection (d)(3) also includes several proposed amendments that are intended to ensure prompt repair or the prompt provision of compensation for structure damage. Subsection (d)(3) describes the actions the Department will take upon finding that an operator's underground mining operations caused damage to a structure. Proposed amendments include the addition of language expressly requiring prompt repair or compensation and the elimination of references to specific time periods. These amendments are proposed in response to 30 CFR 938.16(zzzz) and (ooooo), which prohibit the use of fixed periods as standards for prompt action.
§ 89.144a (denial of access for premining or postmining structure surveys)
The proposed amendments to § 89.144a (relating to subsidence control: relief from responsibility) limit the circumstances under which an operator may be relieved of liability for damage to an EPACT structure. Existing § 89.144a(1) provides relief of liability in cases where an operator is denied access to perform a premining or postmining survey of a structure after fulfilling all prescribed notification requirements. OSM found this provision to be inconsistent with the Federal regulations, which provide no similar release of liability. OSM directed the Commonwealth to remove this provision from its law and regulations to the extent the release would affect liability for damage to EPACT structures.
Proposed § 89.144a addresses the Federal requirement by creating an exception to the relief of liability that is created when a landowner denies an operator access to perform a premining or postmining survey of a structure. The exception, which is explained in proposed subsection (b), applies only to EPACT structures. Under the exception, the release of liability does not apply to damage that can be shown to be the result of an operator's underground mining operations. The liability established through this proof of causation cannot be overturned on the basis that access was denied to perform a premining or postmining survey.
The exception in proposed subsection (b) is only applicable to damages that can be shown to be the result of an operator's underground mining operations by a preponderance of evidence. The term ''preponderance of evidence'' is used to describe the level of proof needed to substantiate a finding of liability against the operator. It is the standard the Environmental Hearing Board would normally require in upholding a Department order to repair or compensate for subsidence damage. The term is specifically mentioned in the proposed rulemaking to clarify that the Department and the landowner incur additional obligations in cases where an operator is denied access to perform a premining or postmining survey. It also denotes the possibility that damage may go unrepaired or uncompensated if there is insufficient evidence to link the damage to a suspect underground mining operation. Although proposed subsection (b) provides relief to landowners who deny access for premining or postmining surveys, it is not intended to encourage denial of access. Premining and postmining surveys are the most reliable means of identifying damage caused by underground mining operations and ensuring that all mining-related damage is repaired or compensated.
The proposed amendments require a corresponding Federal action to supersede section 5.4(c) of the BMSLCA, which is the statutory basis for the relief of liability in § 89.144a(1). The Federal action will supersede section 5.4(c) of the BMSLCA to the extent it applies to EPACT structures. The relief of liability will still apply in situations where mine operators are denied access to perform premining or postmining surveys of non-EPACT structures.
The proposed amendments to § 89.144a will satisfy the Federal requirement in 30 CFR 938.16(ppppp) by removing the absolute relief of liability as it pertains to structures covered by Federal damage repair and compensation provisions.
§ 89.145a(a) (water supply survey requirements)
The proposal involves several changes to § 89.145a(a)(1) (relating to water supply replacement: performance standards) regarding the performance of premining water supply surveys. The requirement to conduct a premining survey prior to mining within 1,000 feet of a water supply is deleted and replaced with a requirement to conduct a survey prior to the time a water supply is susceptible to mining-related effects. This amendment ensures that premining information will be available for all water supplies prior to the time of impact and that the collection of survey information is not hampered by a fixed distance criterion. Under the amended requirement, the Department will determine an appropriate distance for individual mining operations based on local geologic and hydrologic conditions and the observed effects of previous mining. The requirement in subsection (a) represents the deadline by which operators must obtain premining survey information; however, as a general practice, the Department will require operators to provide water quality and quantity information at the time of permit application or permit renewal for all water supplies that are likely to suffer impacts during the succeeding permit term.
Another proposed amendment to subsection (a) amends the conditions under which the collection of some or all survey information may be waived. The existing regulation limits survey requirements to information that can be collected without extraordinary efforts or the expenditure of excessive sums of money. Under the amended language, an operator is only excused from collecting information if required collection measures pose an inconvenience to the landowner. This exception is intended to address situations where an operator would have to damage a building to gain access to a well or spring.
The proposed amendments in water supply survey requirements are in response to 30 CFR 938.16(qqqqq) of the OSM Rule.
§ 89.145a(b) (prompt replacement of water supplies)
The proposed rulemaking includes two amendments to § 89.145a(b) regarding an operator's obligation to replace water supplies that are affected by its underground mining operations. One amendment adds the requirement that replacement or restoration be done ''promptly.'' This requirement is proposed to make the Commonwealth's standard for timeliness of action as effective as the Federal standard in section 720(a)(2) of the SMCRA and 30 CFR 817.41(j). The term ''promptly'' is not defined in the SMCRA or Federal regulations. Under the Federal program, promptness is evaluated on the basis of site-specific considerations. Under the amendment provision, the Department will also assess promptness of an operator's actions based on site-specific considerations. This amendment is proposed in response to 30 CFR 938.16(iiii) and (rrrrr) of the OSM Rule.
The second proposed amendment to § 89.145a(b) is in regard to the general standards for adequacy of replacement water supplies. The existing language suggests that an operator has an option to provide a replacement water supply that meets the premining uses of the original water supply or a replacement water supply that meets the reasonably foreseeable uses of the original water supply. The revised language clarifies that an operator must consider both the premining uses and the reasonably foreseeable uses of the original water supply. This amendment is necessary to ensure that the Commonwealth's standards for replacement water supplies are no less effective than those of Federal regulations and is required by 30 CFR 938.16(rrrrr) of the OSM Rule.
§ 89.145a(e) (provision of temporary water)
The proposed rulemaking includes an amendment to § 89.145a(e) to address the provision of temporary water in cases where the rebuttable presumption is not applicable. The new provision, which is added as paragraph (2), requires the operator to promptly provide temporary water when either the operator or the Department finds that the operator's underground mining operations have caused contamination, diminution or interruption of a water supply. The existing regulation is silent in regard to the operator's obligations when effects occur outside the rebuttable presumption area or when the rebuttable presumption does not apply for other reasons. This amendment is required under 30 CFR 938.16(sssss) of the OSM Rule.
The proposed rulemaking also amends existing paragraph (2), which has been renumbered as paragraph (3), regarding the quantity of temporary water supplies. This amendment deletes the term ''premining'' in describing the needs that must be satisfied by a temporary water supply. Under the amended language, an operator is required to provide a temporary water supply that meets all needs that existed prior to impact and additional needs that arise between the time of impact and the time a permanent replacement water supply is established. In fulfilling this requirement, an operator is not expected to satisfy needs that exceed the capacity of the original water supply. This amendment is required under 30 CFR 938.16(ttttt) of the OSM Rule.
§ 89.145a(f) (compensation for increased cost of restored or replacement water supply)
This proposed rulemaking includes several amendments to § 89.145a(f), which establishes criteria for determining the adequacy of replacement water supplies. These amendments pertain to the operation and maintenance costs of replacement water supplies. Existing § 89.145a(f)(1)(v) requires that operation and maintenance costs for replacement water supplies may not exceed those of the previous water supply by more than a de minimis amount. It further provides that an operator must provide for the permanent payment of the increased costs if the amount of increase is more than de minimis. Under this proposed rulemaking, separate criteria are established for EPACT water supplies and other water supplies. Due to the complexity of this amendment, cost criteria are moved to new paragraph (5).
Proposed paragraph (5) requires that, in the case of an EPACT water supply, a restored or replacement water supply may cost no more to operate and maintain than the previous water supply. If the restored or replacement water supply costs more to operate than the previous water supply, the operator must make permanent arrangements to prevent the additional costs from being passed on to the landowner or water user. The revised provision uses the term ''arrangements'' to allow for various types of settlements, such as direct compensation to the landowner, a trust fund or an agreement with a public water supplier. This amendment is in response to the 30 CFR 938.16(ddddd) and (uuuuu) of the Federal Rule.
Proposed paragraph (5) retains the de minimis cost criterion for non-EPACT water supplies, since these water supplies are outside the scope of 30 CFR 938.16(ddddd) and (uuuuu). For non-EPACT water supplies, determinations of adequacy will continue to be based on the criteria specified in the definition of the term de minimis cost increase in § 89.5. In situations where cost increases are more than de minimis, the operator shall provide for the permanent payment of the increased costs to prevent the additional costs from being passed on to the landowner or water user.
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