PROPOSED RULEMAKING
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 89]
Mine Subsidence Control, Subsidence Damage Repair and Water Supply Replacement
[27 Pa.B. 2379] The Environmental Quality Board (Board) proposes to amend Chapter 89 (relating to the underground mining of coal and coal preparation facilities). The proposed amendments pertain to the control and repair of mine subsidence damage and the replacement of water supplies affected by underground bituminous coal mines.
A. Effective Date
These proposed amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact Evan T. Shuster, Chief, Division of Monitoring and Compliance, Bureau of Mining and Reclamation, P. O. Box 8461, Rachel Carson State Office Building, Harrisburg, PA 17105-8461, or Joe Pizarchik, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464. Information regarding submitting comments on this proposal appears in Section J of this Preamble. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection's (Department's) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The amendments are proposed under the authority of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. §§ 1406.1--1406.21).
D. Background and Purpose
This rulemaking proposal is driven by recent changes in Commonwealth law and recent changes in Federal law which affect State primacy. These changes concern mine subsidence control, mine subsidence damage repair and compensation, and water supply replacement at underground bituminous coal mines. Key events affecting this rulemaking are as follows:
--On October 24, 1992, the United States Congress passed the National Energy Policy Act which amended the Federal Surface Mining Control and Reclamation Act. These amendments imposed on underground mine operators new duties to repair or compensate for subsidence damage to certain structures and to replace certain water supplies impacted by underground coal mining.
--On June 20, 1994, the Pennsylvania General Assembly passed the act of June 22, 1994 (P. L. 357, No. 54) (Act 54) amending the BMSLCA. These amendments became effective on August 21, 1994. The amendments imposed on underground bituminous coal mine operators new duties to replace water supplies affected by underground coal mining; repair or compensate for subsidence damage to a wide range of structures; avoid causing irreparable damage to certain structures; and prevent imminent hazards to human safety. The amendments, among other things, also repealed existing prohibitions on subsidence damage to certain structures and the right of a surface owner to purchase coal support.
--On March 31, 1995, the United States Department of the Interior, Office of Surface Mining Control and Reclamation Enforcement (OSM) promulgated final rules to implement the provisions of the National Energy Policy Act. The rules expanded on the basic statutory provisions by imposing informational requirements and supplementary performance standards which the OSM viewed as necessary to ensure that the intent of the act would be fulfilled.
--On April 10, 1995, the OSM published a notice in the Federal Register soliciting comments regarding the manner in which the March 31, 1995, Federal regulations should be enforced in this Commonwealth.
--On July 28, 1995, the OSM published public notice of its determination on the manner in which the March 31, 1995, Federal regulations would be enforced in this Commonwealth. The OSM decided to pursue joint enforcement in which the Department would enforce the provisions of Act 54 and the OSM would enforce the provisions of the Federal regulations that are beyond the scope of Act 54.
--OSM's notice also stated that Pennsylvania would be submitting a primacy program amendment to address the changes to the Commonwealth's program that resulted from the passage of Act 54.
--On February 6, 1996, Governor Ridge signed Executive Order 1996-1. The order establishes standards for Commonwealth regulations, as follows:
* Regulations shall address a compelling public interest.
* Costs of regulations shall not outweigh their benefits.
* Regulations shall be written in clear, concise and, when possible, nontechnical language.
* Regulations shall address definable public health, safety or environmental risks.
* Where Federal regulations exist, Pennsylvania's regulations may not exceed Federal standards unless justified by a compelling and articulable Pennsylvania interest or required by State law.
* Compliance shall be the goal of all regulations.
* Where viable nonregulatory alternatives exist, they shall be preferred over regulations.
* Regulations shall be drafted and promulgated with early and meaningful input from the regulated community.
* Regulations may not hamper the Commonwealth's ability to compete effectively with other states.
This rulemaking proposal is intended to fulfill three objectives. One objective is to bring Department regulations regarding mine subsidence control, mine subsidence damage repair and water supply replacement into conformance with Pennsylvania law. Another objective is to ensure that this same subset of regulations meets requirements necessary to fulfill the Commonwealth's primacy requirements under the OSM regulations. The third objective is to ensure that the regulations revised during this rulemaking conform to Executive Order 1996-1.
Certain revisions in this rulemaking are necessary because of two Environmental Hearing Board (EHB) decisions which may have significant detrimental effects on this Commonwealth's underground bituminous coal mining industry. The decisions were issued in the case P.U.S.H. et.al. v. DEP et. al., EHB Docket No. 95-232-R (Consolidated) (Two Opinions and Orders issued on November 27, 1996, and one Opinion and Order issued on December 23, 1996).
In a November 27 decision, the EHB found, among other things, that the amended BMSLCA contained authority for portions of the underground mining regulations that were put into place to prevent subsidence damage to dwellings, cemeteries, municipal public service operations and municipal utilities in place on April 27, 1966, P.U.S.H. et al. v. DEP et al., EHB Docket No. 95-232-R (Consolidated) (Opinion and Order on Eighty-Four Mining Company's Motion for Partial Judgment against People United to Save Homes issued November 27, 1996), pp 25-29. Prior to this decision, the Department believed that the Legislature, through the Act 54 amendment to BMSLCA, specifically repealed the absolute protection and enacted a requirement to repair any subsidence damage caused to these structures. Consequently, in the Department's view, Act 54 invalidated Department regulations that protected these structures from experiencing any subsidence damage. The Department prepared an expedited rulemaking package to delete the subsidence damage prevention requirements which were based on repealed section 4 of BMSLCA (52 P. S. § 1406.4). These deletions are also reflected in this proposed rulemaking package.
In a second November 27 decision, the EHB determined that the Department had not complied with its own regulations to ensure adequate protection of utility lines and service. Specifically, the EHB found that a mine operator's mere notice to utility companies of future mining beneath utility pipelines is inadequate to comply with the Department's regulation, and to ensure protection of the lives and property of citizens as required by the BMSLCA, P.U.S.H. et al. v. DEP et al., EHB Docket No. 95-232-R (Consolidated) (Opinion and Order on Motions for Summary Judgment issued November 27, 1996) pp. 5-13. The EHB's December 23, 1996, denial of the Department's and Eighty-Four Mining Company's Petition for Reconsideration emphasized that ''the Department's regulations require Eighty-Four Mining Company to set forth in its subsidence plans exactly what mitigation measures it will employ in the mine,'' P.U.S.H. et al. v. DEP, et al., EHB Docket No. 95-232-R (Consolidated) (Opinion and Order issued on December 23, 1996), p.2 (citing P.U.S.H. et al. v. DEP et al., EHB Doc. No. 95-232-R (Consolidated) (Opinion Motions for Sumary Judgment, issued Novmeber 27, 1996), pp. 5-7. Although the EHB s decision can be interpreted as just requiring more than notice, to the extent that it directs in-mine measures in all cases, it unduly restricts the flexibility needed to address issues concerning utility services.
The Board believes that operators should be granted a certain amount of flexibility in deciding on the measures that will be taken to minimize damage or destruction of utility lines or disruptions in utility service. The Board believes that the primary objective of utility protection is minimizing disruption in service, which can be accomplished by various means, including, but not limited to, minimizing damage or destruction of utility lines. Unduly restricting utility protection to in-mine measures precludes the use of other protection options such as preparing pipelines to withstand subsidence; providing temporary water or energy service during subsidence; or demonstrating that pipelines are capable of withstanding the effects of subsidence. The Board does, however, share the EHB's opinion that a mine operator must do more than merely notify a utility operator that its lines are about to be undermined. The Board is therefore proposing amendments which will accomplish the objective of providing flexibility in addressing issues concerning utility services.
E. Input from Advance Notice of Proposed Rulemaking
In view of the number of people and organizations potentially affected by this rulemaking, the Department has taken several steps to solicit public input in the scope and content of the proposed amendments. The first step was a March 1996 meeting involving 12 representatives from the coal industry, farming community, citizens groups and the OSM. The purpose of the meeting was to discuss major issues and compare Act 54 provisions with those of Federal counterpart regulations.
Subsequently, the Department prepared a set of draft regulations which it made available for public comment through an advance notice of proposed rulemaking (ANPR). Under the ANPR the availability of draft proposed rules was published at 26 Pa.B. 4693 (September 28, 1996) and comments were received until October 28, 1996.
Thirteen sets of comments were received in response to the ANPR. Comments were submitted by mining interests, agricultural interests, public water suppliers, gas utilities, citizens groups and private individuals. In total, over 175 individual comments were submitted. The comments addressed every section of the proposed amendments as well as some sections of the current regulations which were not intended for revision.
Commentators offered 85 recommendations for specific changes to the draft regulations which were distributed during the ANPR. Many of these recommendations were adopted in preparing the proposed amendments in Annex A. The most significant change was a restructuring of the proposed amendments which was done for purposes of clarification.
Three commentators recommended changes to the ANPR definition of ''irreparable damage.'' One commentator recommended defining the term to include only damage which cannot be repaired. Another commentator recommended defining the term using a cost threshold set at 75% of the replacement cost. The second commentator also recommended that the definition include the concept that damaged components must be restored with the same type of materials and workmanship. The third commentator requested that the definition include the term to include damage to public water mains and facilities. In reviewing these recommendations, the Board found that defining the term as damage which cannot be repaired does little to clarify the meaning of the term or promote its consistent application. The Board also believed that using a repair cost threshold set at 75% of the replacement cost would be difficult to justify. The Board also noted that the term irreparable damage as used in the BMSLCA applies to dwellings and agricultural structures and not to water mains and facilities. The Board did, however, recognize the merit of considering structural components which would be difficult to replace and added a subpart to the ANPR definition to reflect this consideration.
Four commentators recommended changes to the ANPR definition of ''material damage.'' Two commentators recommended adding language specifying that the damage must be significant and permanent in nature. Another commentator noted that the definition was similar to the Federal definition, but the ANPR definition was missing some of the language of the Federal definition. The fourth commentator felt that the definition should be worded to apply to public water mains and facilities. After reviewing these recommendations, the Board made only those changes needed to conform the proposed definition to the Federal regulations since the Board believes that the Federal definition adequately defines the term.
Four commentators recommended changes to the ANPR definition of ''permanently affixed appurtenant structures and improvements.'' Several commentators recommended adding additional items and qualifications to the list of structures and facilities given as examples. One commentator noted that the term ''improvements'' is only used in association with dwellings, while the term ''permanently affixed appurtenant structures'' is used in association with dwellings and buildings which are accessible to the public. After considering these recommendations, the Board has retitled the term ''permanently affixed appurtenant structures'' so that it can be applied in conjunction with both dwellings and buildings which are accessible to the public. The Board has also made changes to the text of the definition for purposes of clarification and added ''inground swimming pools'' to the list of examples.
Two commentators recommended changes to the ANPR definition of ''public water supply system.'' One commentator recommended deleting the second clause of the definition which includes systems serving public buildings, churches, schools, hospitals and nursing homes. Another commentator recommended expanding the definition to include systems serving hunting camps and resorts. The Board decided to move forward with the ANPR definition because it believes that all systems covered by the definition are justifiably classified as public water supply systems under the BMSLCA. The Board did not add systems serving hunting camps and resorts to the definition because it believes that these systems were not intended to receive the special protection provided by section 9.1 of the BMSLCA (52 P. S. § 1406.9a). The Board also noted that water supplies serving hunting camps and resorts are covered by the water supply replacement provisions under section 5.1 of the BMSLCA (52 P. S. § 1406.5a).
One commentator recommended changes to the ANPR definition of ''rebuttable presumption area.'' The commentator recommended that the definition include the 3-year limit on operator liability provided by the BMSLCA. The commentator also recommended that the rebuttable presumption should only apply to mining which results in subsidence. The Board rejected the first recommendation because the purpose of defining the term is to identify an area and not to reach a conclusion regarding liability. The Board also rejected the second recommendation, because Department records and published literature document that water supply impacts can occur in the absence of mine subsidence.
Three commentators offered recommendations regarding the ANPR definition of ''water supply.'' One commentator recommended that the term not be defined in the regulations since it was already defined in the BMSLCA. Two commentators recommended that the Board modify the term to include water delivery systems like the Federal counterpart regulations. The Board has retained the ANPR definition as part of the proposed rulemaking because it believes that the definition contributes to the clarity of the regulations. Since the term is specifically defined in the BMSLCA, the Board has made no attempt to modify the definition to include water delivery systems. The Board does, however, believe that the piping needed to connect a replacement well or spring to a dwelling, agricultural building or other point of service would be covered within the general requirement to replace a water supply. In § 89.145(f)(4) (relating to water supply replacement; performance standards) the Board has clarified the operator's obligation to include a water delivery system as a part of a water supply replacement.
Several comments were received in response to the ANPR regulations on hydrologic data collection. One commentator recommended that only water supplies which are known should be required to be listed in the groundwater inventory. Another commentator recommended that data collection include at least 1 full year of sampling. In further considering hydrologic data collection requirements, the Board decided to restore the current language of § 89.34 (relating to hydrology) except for the addition of the requirement to obtain ownership information. The groundwater inventory in § 89.34 has historically been developed through a representative sampling of water supplies above and adjacent to a mine. The Board sees no reason to significantly expand this requirement given that all water supplies will eventually be sampled through premining survey requirements.
Two commentators recommended changes to the ANPR regulations on prediction of hydrologic consequences. One commentator recommended changing the current text to require verification of all hydrologic models. Another recommended modifying the existing test to require the use of site specific data and to eliminate the optional use of statistically representative data. No changes were made in response to these comments, since there is no evidence that current requirements are resulting in inaccurate predictions. Furthermore, these requirements track the Federal requirements in 30 CFR 784.14 (relating to hydrologic information).
Numerous comments were received in response to the ANPR regulations on premining water supply survey requirements. Several comments concerned the timing of surveys and the submission of survey results. Two commentators offered recommendations concerning analytical parameters and measurements which should be included in surveys. One commentator was concerned that the language of the ANPR regulations could relieve an operator of the duty to perform a survey based on the operator's opinion that the supply would not be affected. Two commentators also expressed concern that the regulations may be interpreted to limit survey requirements to those supplies which lie within the 35° rebuttable presumption area. After considering these recommendations, the Board modified the ANPR regulations on premining water supply surveys. Under the new proposal, all water supplies must be sampled prior to mining within a predetermined area in which the water supplies may be impacted. Survey results must be submitted to the Department and the landowner within 30 days as required by the BMSLCA. Information gathering requirements have been modified so that the proposed regulations are modeled after those used in the Department's surface mining program. In addition, hardness and total coliform have been added to the list of water quality sampling parameters.
Three commentators recommended changes to the ANPR regulations on premining structure surveys. One commentator recommended allowing structure surveys to be conducted up to 1 month before the structure is undermined. Another commentator recommended that the requirement to conduct surveys should only apply in areas where subsidence is planned. Two commentators expressed concern about the handling of survey results which may include pictures or videos showing the contents of dwellings. After considering these recommendations, the Board revised the proposed amendments. The proposed amendments provide for surveys to be conducted nearer to the time of mining but uses distance criteria rather than time-based criteria to determine when surveys must be conducted. Surveys are required for all structures which fall within a 30° angle of draw of proposed mining to ensure that survey results are available in the event of either planned or unplanned subsidence. The proposed amendments also protect homeowner privacy by limiting the availability to the general public of structure survey results.
Numerous comments were received in response to the ANPR regulations on subsidence control plans. The proposed amendments have been substantially revised as a result. One of the more significant changes was the relocation of many requirements associated with water supply replacement to other sections of the regulations.
Several comments were received in response to the ANPR regulations on areas where underground mining is restricted. One commentator requested that the Department reinstate cemeteries on the list of features to which material damage must be prevented. One commentator recommended that the Department modify the standard for damage prevention so that operators could extract more than 50% of the coal. The commentator also recommended that the Department modify the regulations to allow owners of protected structures and features to waive the protection against material damage that is required by the BMSLCA. One commentator noted that the ANPR regulations included a paragraph which redefined the term ''material damage.'' In response to these comments, the Board has deleted the paragraph which redefined material damage. The Board decided to retain the language specifying 50% coal support as the standard for preventing material damage due to difficulties inherent in forecasting the level of damage a structure may experience. The Board has chosen to refrain from reinstating cemeteries to the list of protected features since the protection afforded to cemeteries was specifically repealed by the Act 54 amendments. Pending further comment, the Board is proposing no specific language regarding the waiver of protection.
Two commentators recommended changes to the ANPR regulations on minimizing material and irreparable damages. One commentator noted that the requirement to minimize material damage to dwellings and other classes of unprotected structures is outside the scope of the BMSLCA. Another commentator requested that the regulations be revised to require the use of the most effective of available measures for minimizing damage. In reconsidering these regulations, the Board has decided to delete the requirement to minimize material damage to dwellings and other classes of unprotected structures, which is derived from Federal regulations. As proposed, the regulations now require the use of damage minimization measures when irreparable damage is forecast. This makes the regulations consistent with State law.
Numerous comments were received in response to the ANPR regulations on water supply replacement requirements. The vast majority of these comments expressed dissatisfaction with provisions which were derived directly from the BMSLCA. Several commentators were dissatisfied with the compensation requirements proposed in situations where replacement water supplies are more costly to operate than the original water supplies. One commentator recommended that replacement water supplies serving livestock or dairy operations be equivalent in quantity to the original water supply in order to ensure that these operations will be able to remain competitive under future market conditions. One commentator requested that temporary water supplies should not be required to meet the foreseeable use criteria which pertain to permanent replacement supplies. The proposed amendments in Annex A have been significantly revised from the version which appeared in the ANPR. Although the proposed amendments are still based primarily on BMSLCA provisions, additional subsections have been added to reflect Pennsylvania's case law on water supply replacement. In addition, language has been added to distinguish the requirements which apply to temporary water supplies from those which apply to permanent replacement water supplies.
Two comments were received concerning the ANPR regulations which relieve an operator of the responsibility to replace a water supply if he compensates a landowner for the reduction in fair market value of the property resulting from the loss of the water supply. The commentators believed that fair market value begins to decline at the time a mine opens. They recommended calculating reductions in fair market value using the fair market value of a property prior to the opening of the mine. The Board does not agree with this concept because it is not in accordance with section 5.2(g) of the BMSLCA (52 P. S. § 1406.5b(g)) that specifically requires reduction in fair market value be calculated using the fair market value immediately prior to the time a water supply is impacted.
Several comments were received in response to the ANPR regulations addressing the repair of subsidence damage to dwellings and other classes of structures. Many of these comments expressed dissatisfaction with provisions which came directly from the BMSLCA. One commentator noted that in cases involving agricultural structures, the regulations only required a demonstration that the structure was being used for an alternative purpose whereas the statute requires affirmative proof. In drafting the proposed amendments, the Board included the latter recommendation. Otherwise the proposed amendments are essentially the same as the ANPR version.
Two comments were received in response to the ANPR regulations on correcting material damage to surface lands. One commentator noted that according to the BMSLCA, an operator must only correct material damage to surface lands to the extent technologically and economically feasible. Another commentator recommended that the regulations be reworded to clarify that reductions in crop or timber production constitute material damage. In preparing the proposed amendments, the Board added the qualification that damage need only be repaired to the extent technologically and economically feasible. No other changes were made to the ANPR version, because the objective in revising the regulation was to conform as closely as possible to the Federal regulations, and the Board does not believe that the Commonwealth has a compelling reason to deviate from the Federal regulations.
Several comments were received in response to the ANPR regulations on protection of utilities. Several commentators requested the addition of provisions which would require a mine operator to either protect utility lines from damage or compensate utility owners for expenses incurred in making repairs or taking precautionary measures. One commentator representing a gas utility indicated that his company had spent more than $250,000 over the past 5 years to protect its pipelines from subsidence damage. Another commentator representing a water utility indicated his company will have to spend between $3.5 and $4 million to replace water lines damaged by subsidence. The Board is proposing to change regulations relating to utility protection. The revised regulations will require mine operators to assume a larger role in protecting utilities, but provide mine operators greater flexibility in carrying out this responsibility.
Several comments were received concerning the ANPR regulations on maintaining the value and reasonably foreseeable use of perennial streams. The Board did not intend to change these regulations other than to separate the text into information requirements and performance standards and to relocate these components to separate and distinct sections of the regulations. Pending further commentary, the Board is not proposing to revise the substance of the ANPR regulations.
Several comments were received in response to the ANPR regulations on preventing hazards to human safety. Several commentators recommended that damage to utility lines be directly referenced in this section. Another commentator requested that language be inserted to release an operator from liability when surface occupants refuse to take themselves out of harm's way. The Board decided not to change the ANPR regulations because it believes that the regulations should track the wording of section 9.1 of the BMSLCA and be sufficiently broad to address a variety of dangerous situations.
One comment was received in regard to the ANPR regulations on public notice. The commentator recommended expanding the notification requirements to include additional parties. The Board has responded by revising the proposed regulation to require operators to notify structure owners of impending mining.
Several comments were received concerning the ANPR regulations on resolution of subsidence and water supply damage claims. Most of these concerned dissatisfaction with the provisions of the BMSLCA. One commentator recommended adding a provision allowing an operator to request Department investigation of a water loss claim. Another commentator noted that the regulations did not reflect the statutory provision that an operator is only required to provide temporary water in the event that an affected water user is without a readily available alternate source of water. The Board did not include a provision to address a situation in which an operator requests a Department investigation of a water loss claim since the Department intends to investigate all water loss claims reported to it. The proposed amendments have been modified to reflect that an operator is not required to provide temporary water in situations in which an affected water user has a readily available and adequate alternate source of water.
Several comments were received regarding those ANPR regulations which described the terms and provisions of voluntary agreements. Some commentators felt that voluntary agreements should not be allowed as a means of resolving subsidence damage or water loss claims, even though the agreements were authorized under the BMSLCA. Some commentators recommended that the terms of agreements should be left as stated in the statute and not be repeated in regulations. After considering these comments, the Board decided not to propose amendments specifying the terms of voluntary agreements.
Several commentators recommended adding an additional regulatory section that would impose duties upon the Department to collect data in accordance with section 18.1 of the BMSLCA (52 P. S. § 1406.18a) and to conduct inspections of surface properties before and after underground mining. The Board does not believe that it is necessary to impose a regulatory requirement upon the Department in order for the Department to fulfill its responsibilities under section 18.1 of the BMSLCA.
In addition to the aforementioned comments, 36 comments were received expressing general concerns and questions which addresses issues beyond the scope of the ANPR process.
F. Summary of Regulatory Requirements
The proposed regulatory changes involve extensive revisions to Chapter 89. Overall changes of major significance include:
--The addition of new regulatory requirements on mine subsidence control, subsidence damage repair and water supply replacement.
--The restructuring of Subchapter F (relating to subsidence control and water supply replacement) to allow the grouping of current regulations and proposed amendments having a common purpose or objective.
--The subdivision and reorganization of current regulatory requirements to distinguish between information requirements and performance standards.
In addition to the aforementioned changes, several changes are also proposed to existing regulations to clarify the manner in which the Department currently implements these requirements. These changes relate to mining where overburden is less than 100 feet (30.48 meters) in thickness and where mining is proposed beneath utility lines.
In revising the regulations, the Board hopes to ensure the correct and consistent use of the terms ''underground mining activities,'' ''underground mining operations'' and ''underground mining.'' These terms are all derived from the definition of ''underground mining activity'' in § 89.5 (relating to definitions). The term ''underground mining activity'' is used to refer to all aspects of an underground mine including those operations which take place at the land surface. The term ''underground mining operations'' includes those activities which are carried out beneath the land surface. The term ''underground mining'' refers to the extraction of coal in an underground mine.
Due to the restructuring of Subchapter F, Annex A shows many current regulations marked for deletion. Most of these regulations reappear as inserted text at alternate locations. In some cases, a current regulations was divided into information requirements and performance standards prior to relocation.
The proposed amendments in Annex A differ in many respects from those which were prepared for the ANPR. In addition to organizational changes, the Board made numerous changes to information requirements and performance standards based on ANPR commentary and based on Department recommendations. The proposed amendments also differ from the ANPR because of changes made to Chapter 89 by the Mine Subsidence Control rulemaking at 27 Pa.B. 2371 (May 10, 1997).
The following is a discussion of the proposed amendments by section.
§ 89.5. Definition of "de minimis" cost increase.
A definition of the term ''de minimis cost increase'' is proposed to clarify a term used in association with water supply replacement requirements. The term identifies a threshold below which an operator is not responsible for compensating a landowner or water user for the increased cost of operating a replacement water supply. The definition is consistent with that employed in the Department's surface mining regulatory program which derives from Commonwealth case law.
§ 89.5. Definition of ''fair market value.''
A definition of the term ''fair market value'' is proposed for clarification. The term is used to determine the amount of compensation an operator must provide to a landowner whose water supply cannot be replaced. The definition is taken from Blacks Law Dictionary. In the context of water supply replacement, the term and its application are specific to Commonwealth law and have no counterparts in Federal regulations.
§ 89.5. Definition of ''irreparable damage.''
A definition of the term ''irreparable damage'' is proposed for purposes of clarity. The term is used in section 9.1 of the BMSLCA to mean a level of damage which is not permissible without the consent of the structure owner. The term applies to dwellings and certain agricultural structures identified in section 5.4(a)(3) and (4) of the BMSLCA (52 P. S. § 1406.5d(a)(3) and (4)). By law, if any of these structures is likely to suffer irreparable damage, the operator must follow one of three courses of action prior to causing any damage to the structure. The operator may obtain the structure owner's consent to irreparably damage the structure. As an alternative course of action, the operator may take measures to prepare the structure to withstand the effects of mine subsidence and thereby minimize the extent of damage. As a third alternative, the operator may modify his mining plan to use a mining technique or extraction ratio which will not result in irreparable damage to the structure.
The proposed definition provides criteria which can be applied in advance of mining to predict whether or not irreparable damage is likely to occur. One criterion is that the estimated cost of repairing the predicted damage would exceed the cost of rebuilding the structure. This criterion is based on the logic that a structure which must be replaced in entirety has been irreparably damaged. The second criterion turns on the presence of structural components which would be extremely difficult or impossible to replace, if they were damaged. This criterion recognizes that certain components are irreparable because they are unique or because their restoration would require materials or craftsmanship which is no longer in existence.
§ 89.5. Definition of ''material damage.''
A definition of ''material damage'' is proposed to clarify the meaning of the term and to conform to Federal counterpart regulations. The language is derived from the Federal definition in 30 CFR 701.5 (relating to definitions). The proposal to adopt the Federal definition is based in part on the observation that the term ''material damage'' only appears in those parts of the BMSLCA which mirror the language of Federal law.
§ 89.5. Definition of ''permanently affixed appurtenant structures.''
A definition of ''permanently affixed appurtenant structures'' is proposed to clarify the meaning of a term which is used in association with dwellings and buildings accessible to the public under section 5.4 of the BMSLCA. By law, these structures are covered by subsidence damage repair and compensation requirements when they are associated with a building which is accessible to the public or associated with a dwelling.
The term is not defined in the the BMSLCA, but appears to be similar in concept to the term ''structures related thereto'' which appears in the Federal regulations. In order to clarify the meaning of this term and achieve consistency with Federal counterpart regulations, the proposed definition borrows from the definition of the Federal term ''occupied residential dwelling and structures related thereto.'' Based on comments received during the ANPR, inground swimming pools have been added to the list of examples, and language has been added to clarify that utility coverage is limited to those facilities owned by utility customers.
§ 89.5. Definition of ''public water supply system.''
A definition of the term ''public water supply system'' is provided for clarity. The term relates to the protection of source aquifers and surface waters which serve as significant sources of water supply to these systems under section 9.1 of the BMSLCA, 30 CFR 817.121 (relating to subsidence control) and the proposed performance standard in § 89.142a(c)(3).
Although all water supplies are protected by the BMSLCA, significant sources to public water systems are protected against any damage caused by underground mining. The definition is needed to distinguish between public water supply systems protected under the mining regulations and public water systems regulated under the Commonwealth's safe drinking water program. Given that the protections under section 9.1 of the BMSLCA are generally enforced by restricting mining under aquifers and perennial streams, expanded protection would equate to increased obstacles to underground mining. Since one purpose of Act 54 was to allow the continued growth and development of the bituminous coal industry, the Board believes that the General Assembly did not intend the BMSLCA water supply systems to include all of the public water systems regulated by the Pennsylvania Safe Drinking Water Act. Consequently, in the BMSLCA, the General Assembly did not use the Safe Drinking Water Act term ''public water systems.'' The Board believes that the proposed definition in Annex A fulfills the purposes of the BMSLCA.
§ 89.5. Definition of ''rebuttable presumption area.''
A term ''rebuttable presumption area'' has been defined for clarity and convenience. The term relates to water supply replacement and the definition is taken directly from section 5.2(c) of the BMSLCA. The term refers to an area within the proximity of a mine where an operator is presumed responsible for impacting water supplies. The area is defined to encompass an area above the mine, which is determined by projecting a line along a 35° angle from the outside of a coal removal area to the land surface.
The rebuttable presumption of responsibility for water loss is specific to the Commonwealth based on the BMSLCA. The concept has no counterpart in Federal water supply replacement regulations.
§ 89.5. Definition of ''water supply.''
A definition of the term ''water supply'' is proposed for clarity and convenience. The definition is taken from the language in section 5.1 of the BMSLCA and relates to the types of water supplies which must be replaced when affected by underground mining activities.
The definition includes virtually all types of water supplies found in the bituminous coal fields. The only obvious exclusions are water supplies which serve agricultural irrigation systems constructed after August 21, 1994, which is consistent with statutory requirements. This definition is much more inclusive than its Federal counterpart in 30 CFR 701.5 which covers only those water supplies used for drinking, domestic and residential purposes.
§ 89.33. Geology.
This rulemaking proposes to add coal seam thickness as an information requirement in subsection (a)(1). This addition is intended to demonstrate consistency with 30 CFR 784.20(b)(3) (relating to subsidence control plan). It does not impose additional data collection requirements on operators, since this information is currently required in permit applications.
§ 89.34. Hydrology.
Changes are proposed to subsection (a)(1)(i). These changes are proposed to demonstrate conformance with Federal requirements and to clarify certain information requirements.
The proposed amendments add the ownership of wells and springs to the list of information which must be provided in the groundwater inventory. These changes are proposed to conform to the Federal counterpart regulations in 30 CFR 784.14(b). This proposal will not impose additional data collection requirements on operators, since ownership information is currently required in permit applications.
Another proposed revision is the replacement of the term ''potentially impacted offsite area'' with the term ''adjacent area.'' This proposed revision involves the replacement of an undefined term with a term which is defined. The term ''adjacent area'' is defined in § 89.5 and includes the area outside the permit area where surface water or groundwater may be impacted by underground mining activities.
§ 89.35. Prediction of hydrologic consequences.
Proposed language has been added to require permit applicants to predict whether underground mining activities may result in contamination, diminution or interruption of water supplies. This language is intended to conform to the Federal requirements in 30 CFR 784.14(e).
The information collected under this requirement is intended to be general, addressing supplies located in various areas and subareas above and proximate to the mine. It is not intended to be specific to the level of an individual water supply. This information will be used to evaluate the adequacy of a mine operator's plans for water supply replacement.
§ 89.36. Protection of the hydrologic balance.
A new subsection is proposed under § 89.36 requiring an operator to describe measures which he will use to replace water supplies impacted by the mining operation. This requirement is mandated by section 5.2(j) of the BMSLCA. It is also needed to conform to the Federal requirements in 30 CFR 784.20(b)(8).
§ 89.67. Support facilities.
Section 89.67 has been modified to address the EHB decision on utility protection. Language has been added to clarify that this section applies to surface construction and disturbances at sites associated with underground mining operations. These would include shaft sites, slope sites, drift entry sites, borehole sites, coal loading sites, coal preparation sites and other sites where surface operations associated with underground mining activity take place. The measures taken to protect utilities from construction and earthmoving may differ from those taken to protect utilities from mine subsidence. Section 89.67 has been revised to make this distinction.
§ 89.141. Subsidence control: application requirements.
Proposed language has been added to subsection (a) relating to geologic information. The language requires an operator to describe geologic conditions which affect the likelihood or extent of subsidence or subsidence related damage. This proposal is intended to conform to the Federal requirements in 30 CFR 784.20(b)(3). Additional language has also been inserted to clarify the relationship between the geologic information requirements of § 89.33 and this subsection.
In subsection (d), relating to subsidence control plans, language has been added to clarify the area which must be addressed by the subsidence control plan. This language is intended to conform to Federal requirements in 30 CFR 784.20(a)(3) and 817.121(c)(4). The proposed requirement ensures that subsidence control plans will address all structures which may be damaged by mine subsidence, and, moreover, all dwellings and noncommercial buildings which are covered by the rebuttable presumption under the Federal program.
Subsection (d)(2) is a new information requirement which is intended to conform to the Federal requirements in 30 CFR 784.20(a)(2). It requires an operator to provide a narrative description of the potential impacts of subsidence on overlying structures, surface lands and water supplies.
Proposed subsection (d)(3) is a modified version of a current requirement which was formerly found in § 89.141(d)(2)(ii). The language is revised to delete cross references to utilities and perennial streams. The description now pertains to the structures and features which are afforded specific protections under § 89.142(c). Descriptions of the measures which will be used to protect perennial streams and utilities have been moved to subsections (d)(10) and (11), respectively.
Proposed subsections (d)(4) and (5) describe information which an operator must provide when proposing mining which will result in planned subsidence. Subsection (d)(4) is a current regulatory requirement which has been relocated under this proposed rulemaking. Subsection (d)(5) contains a new information requirement which is adapted from the Federal requirements in 30 CFR 784.20(b)(8).
Proposed subsection (d)(6) requires a statement that underground mining activities will not be conducted within the support areas of public buildings and facilities, churches, schools, hospitals, impoundments and water bodies protected under section 9.1 of the BMSLCA, unless measures are taken to prevent material damage. This same list of structures is afforded equivalent protection under the Federal program. Protective measures include those mentioned under subsection (d)(3) and § 89.142a(c)(2).
Proposed subsection (d)(7)--(12) are current information requirements which have been relocated under this rulemaking proposal.
§ 89.142a. Subsidence control: performance standards.
This regulatory section addresses new subject matter. Section § 89.142a includes performance standards applicable to the control of mine subsidence and the repair of mine subsidence damage to surface lands and structures.
Proposed subsection (a) consists primarily of existing performance standards which are being relocated. Subsection (a)(2) has been revised to correct cross references. Subsection (a)(3) clarifies the demonstrations an operator must make in order to mine beneath a structure where the overburden thickness is less than 100 feet.
Proposed subsection (b) requires operators to conduct premining surveys of the condition of the dwellings and other structures listed under subsection (f)(1), unless the structure owner denies access to conduct a survey. The survey must be conducted prior to the time the structure is at risk to subsidence damage and at least prior to the time the structure falls within a 30° angle of draw of the underground mining. This ensures that baseline information will be available for all structures before they are impacted by mine subsidence. Furthermore it ensures that baseline information will be available to detect subsidence damage to all structures covered by the rebuttable presumption under the Federal program. Under the Federal regulations, an operator is presumed to be responsible for damage to a structure if he has mined within a 30° angle of draw of the structure.
Proposed subsection (b) also requires that premining surveys document the presence of structural components which cannot be repaired or replaced. This will enable operators, landowners and the Department to make informed decisions regarding the potential for irreparable damage to occur. In addition, the survey results must be provided to the landowner and to the Department upon Department request. Due to the confidential nature of pictures and videos showing the contents of dwellings and other structures, the proposed amendments do not require operators to submit to the Department survey results since the submitted results would become part of the public record. The proposed amendments provide for the Department to obtain survey results when necessary. Although the Federal regulations require survey results to be submitted at the time of permit application, the Board believes that the arrangement specified in subsection (b) is preferable because it provides for documentation of all improvements made up to the time a structure is damaged. This eliminates concerns about structural deterioration which may occur when the time frame between the premining survey and the occurrence of subsidence damage extends over a period of years. In addition, it eliminates unnecessary duplication and submission of documents and reduces the availability of information which should be kept confidential.
Proposed subsection (c) describes an operator's responsibility to prevent material damage and reductions in the value and reasonably foreseeable uses of certain structures and features protected under section 9.1 of the BMSLCA. These protections apply to public buildings and facilities; churches, schools and hospitals; impoundments with storage capacities of 20 acre-feet or more; and bodies of water with volumes of 20 acre-feet or more. These structures and features represent the remainder of those formerly protected under § 89.143(b) prior to the repeal of section 4 of the BMSLCA. The standard for protecting these structures remains unchanged and requires leaving 50% of the coal in place to prevent subsidence. Alternative mining measures, including planned subsidence, are permissible within the support area if an operator demonstrates to the Department that the structure or features will not suffer material damage.
Proposed subsection (d) reflects the requirements of section 9.1(b) of the BMSLCA. It requires an operator to prevent irreparable damage to dwellings and agricultural structures, unless the structure owner consents to the damage. If the Department or the operator determines that irreparable damage is likely to occur, the operator must take measures to minimize the extent of damage, or alter the mining plan so that irreparable damage does not occur. Damage minimization measures include techniques such as trenching around the structure, jacking the structure off its foundation and banding the structure to prevent breakage. This requirement is comparable to the requirements of 30 CFR 817.121(a)(2) of the Federal program.
Proposed subsection (e) is a revised version of an existing regulatory requirement involving the repair of damage to surface lands. The existing regulation is vague in that it requires operators to maintain the value and reasonably foreseeable use of surface lands. The proposed version specifies that an operator must correct material damage to surface lands. The revised language more clearly describes the intent of the regulation, which involves the repair of ground cracks and sinkholes and the correction of drainage problems. The revised language also parallels that of the Federal counterpart regulations in 30 CFR 817.121(c)(1).
Proposed subsection (f) reflects the provisions of section 5.4 of the BMSLCA. It sets forth an operator's responsibility to repair or compensate for subsidence damage to dwellings, agricultural structures and other buildings and structures as required by State law.
Proposed subsection (g) relating to the protection of utilities is an existing regulation which has been relocated from former § 89.143(c) and revised. The revised language clarifies that mine operators have the option to either minimize damage or destruction of utility lines or minimize disruption of utility service. This revision is intended to provide mine operators flexibility in complying with utility protection requirements. The revised language allows use of various measures such as supporting utility lines, taking surface measures to mitigate subsidence damage to utility lines, providing utility customers with alternative service and demonstrating that utility lines are unlikely to be damaged by subsidence.
Proposed subsection (h) relating to the protection of perennial streams is an existing performance standard which has been relocated under this rulemaking proposal. Details concerning the implementation of these amendments are covered in the Department Program Guidance 563-2000-655 which has been in effect since February 18, 1994.
Proposed subsection (i) relating to the prevention of hazards to human safety contains one performance standard which has been relocated from its place in existing § 89.142 and one new performance standard which is derived from section 9.1(a) of the BMSLCA. The new performance standard imposes the general responsibility to protect human safety regardless of whether mining is occurring in an urban or rural area.
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