RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 86 AND 89]
Bond Adjustment and Bituminous Mine Subsidence Control Standards
[35 Pa.B. 5775] The Environmental Quality Board (Board) amends Chapters 86 and 89 (relating to surface and underground coal mining: general; and underground mining of coal and coal preparation facilities). The final-form rulemaking incorporates amendments necessary to bring the Commonwealth's regulatory program into conformance with Federal standards for State coal mining regulatory programs. The final-form rulemaking affects requirements regarding bonding, subsidence control, subsidence damage repair and water supply replacement at underground bituminous coal mines.
This order was adopted by the Board at its meeting of April 19, 2005.
A. Effective Date
The final-form rulemaking will become effective upon publication 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 Richard S. Morrison, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available on the Department of Environmental Protection's (Department) website at www.dep.state.pa.us.
C. Statutory Authority
The final-form rulemaking is adopted under the authority of section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7), 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 (71 P. S. § 510-20).
Certain parts of this rulemaking are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)--(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. §§ 1406.5a(b), 1406.5b(g)--(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the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 statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. §§ 1201--1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
D. Background and Summary
This final-form rulemaking satisfies requirements for maintaining a state primacy program under the Federal SMCRA. The amendments in this final-form rulemaking pertain to Federally required program changes described in 30 CFR 938.16(iiii)--(kkkk), (mmmm)--(rrrr), (tttt)--(zzzz), (ccccc)--(ddddd), (fffff)--(uuuuu) and (wwwww)--(bbbbbb) (relating to required regulatory program amendments). These requirements were imposed by the United States Office of Surface Mining and Reclamation Enforcement (OSM) on December 27, 2001, in conjunction with its partial disapproval of Pennsylvania program amendment PA-122, which consisted of the 1994 amendments to BMSLCA and associated regulatory amendments. A detailed history of the events leading up to the December 27, 2001, OSM rule is provided in the preamble to the Board's proposed rulemaking published at 33 Pa.B. 4554 (September 13, 2003).
The amendments in this final-form rulemaking represent the outcome of discussions between the Department and the OSM relative to the fulfillment of requirements in the December 27, 2001, rule. Some of the amendments represent changes made in direct response to the OSM's December 27, 2001, rule and some represent alternate solutions agreed to by the Department and the OSM during the course of discussions. Several of the amendments reflect changes that were not specifically required by the OSM but which serve to clarify or simplify regulatory requirements in the wake of required changes.
Most of the amendments in this final-form rulemaking have been formally approved by the OSM. In September 2003, the Department submitted the Board's proposed rules, published at 33 Pa.B. 4554, to the OSM as a formal program amendment. The amendment, subsequently designated as PA-143, was approved by the OSM at 69 FR 71528 (December 9, 2004). The OSM approval covered all of the amendments included in this final-form rulemaking except those that have changed between proposed and final-form rulemaking. These interim changes will be submitted to the OSM in the form of a separate program amendment.
Several of the final-form amendments are predicated on an OSM action superseding provisions of the BMSLCA that were found to be inconsistent with the Federal SMCRA. The Federal action, which is authorized by section 505(b) of the Federal SMCRA (30 U.S.C.A. § 1255) and 30 CFR 730.11(a) (relating to inconsistent and more stringent State laws and regulations), became effective on December 9, 2004. The Federal action effectively nullified the following provisions of the BMSLCA.
1) Section 5.1(b), which requires a landowner to file a water supply claim within 2 years of the date of effect, is superseded to the extent it would limit an operator's liability to restore or replace a water supply covered under section 720 of the Federal SMCRA (30 U.S.C.A. § 1309).
2) Section 5.2(g), which allows mine operators to settle water supply claims through compensation, is superseded to the extent it would limit an operator's liability to restore or replace a water supply covered under section 720 of the Federal SMCRA.
3) Section 5.2(h), which limits the Department's authority to intervene in the settlement of a water supply claim, is superseded to the extent it would preclude the Department from requiring restoration or replacement of a water supply covered under section 720 of the Federal SMCRA.
4) Section 5.4(a)(3), which requires dwellings and related structures to be in place as of certain specified dates and within certain specified areas, is superseded to the extent it would limit an operator's liability to repair or compensate for damage to structures covered under section 720 of the Federal SMCRA.
5) Section 5.4(c), which provides a release of liability if an operator is denied access to perform a premining or postmining survey of a structure, is superseded to the extent it would limit an operator's liability to repair or compensate for subsidence damage to a structure covered under section 720 of the Federal SMCRA.
6) The portion of section 5.5(b) that requires a landowner to file a structure damage claim within 2 years of the date of damage is superseded to the extent it would limit an operator's liability to repair or compensate for subsidence damage to a structure covered under section 720 of the Federal SMCRA
The following is a description of the final-form rulemaking by section.
§ 86.151(b)(2) (period of bonded liability)
Section 86.151(b)(2) (relating to period of liability) is amended to clarify that an operator's obligation to maintain a subsidence bond ends 10 years after the completion of ''underground mining operations.'' The amendment avoids potential confusion over whether the period of bonded liability runs from the completion of ''underground mining operations,'' an event typically marked by the reclamation of the last shaft or adit, or the completion of ''underground mining activities,'' an event typically marked by the cessation of mine pool maintenance activities. Subsidence bonds do not cover liability for water supply replacement so there is no reason to maintain coverage for more than 10 years after completion of underground mining operations. This amendment was not required by the OSM, but is necessary to clarify subsidence bonding requirements in the wake of other changes regarding the duration of liability for water supply effects.
§ 86.152(a) (bond adjustments)
Section 86.152(a) (relating to bond adjustments) is amended to incorporate several changes regarding the periodic adjustment of reclamation and subsidence bonds. It allows the Department to specify periodic times and set schedules for reevaluation and adjustment of bond amounts. It also obligates the Department to perform periodic evaluations of bonds and to adjust bond amounts when it determines that the area requiring bond coverage has increased or decreased or that the cost of future reclamation has changed or that the projected subsidence damage repair liability has changed. These changes are in response to the OSM requirements in 30 CFR 938.16(ccccc) and in a letter dated September 22, 1999. Language is also added to clarify that the provisions of this section may not be used to expand the scope of subsidence bonds to include water supply replacement liability or other liabilities that are not expressly provided in section 6(b) of the BMSLCA (52 P. S. § 1406.6).
§§ 86.1 and 89.5 (definitions of ''underground mining activities'' and ''underground mining operations'')
The definition of ''underground mining activities'' is amended to clarify that management of a postclosure mine pool is an underground mining activity. The amended definition in conjunction with § 89.152(a)(3)(ii) and (b)(2) establish a period of operator liability for water supply effects extending from the time of undermining until 3 years after the mine pool has stabilized. This amendment satisfies the Federal requirements in 30 CFR 938.16(mmmm) and (xxxxx).
The definitions of ''underground mining activities'' and ''underground mining operations'' are also amended to clarify that the term ''support facilities'' as used in the context of ''underground mining operations'' refers to support facilities located underground as opposed to support facilities located at the land surface. This is an incidental change that was not required by the OSM but which serves to clarify the scope of the term ''underground mining operations.''
§ 89.5 (definitions of ''EPACT structures'' and ''EPACT water supplies'')
Definitions of ''EPACT structures'' and ''EPACT water supplies'' are added to § 89.5 (relating to definitions). These terms are defined to include structures and water supplies covered by section 720 of the Federal SMCRA, as amended by the Energy Policy Act of 1992 (EPACT) (42 U.S.C.A. §§ 13201--13556), and are used throughout the remainder of the chapter to distinguish structures and water supplies subject to specific requirements derived from the Federal regulations. These terms and definitions were not specifically required by the OSM but are incorporated to facilitate references of specific groups of structures and water supplies.
§ 89.5 (deleted definition of ''permanently affixed appurtenant structures'')
The definition of ''permanently affixed appurtenant structures'' is deleted from § 89.5. Coverage of ''permanently affixed appurtenant structures'' is described in amended § 89.142a(f) (relating to subsidence control: performance standards), regarding repair of damage to structures, which distinguishes permanently affixed appurtenant structures that qualify as EPACT structures from other types of permanently affixed appurtenant structures. This deletion of the definition of ''permanently affixed appurtenant structures'' from § 89.5 was not specifically required by the OSM but is indirectly related to the Federal requirement in 30 CFR 938.16(fffff).
§ 89.5 (deleted definition of ''de minimis cost increase'')
The definition of ''de minimis cost increase'' is deleted from § 89.5. The term is no longer used in Chapter 89 following amendments to § 89.145a(f)(5) (relating to water supply replacement: performance standards), which were made between proposed and final-form rulemaking. This amendment relates to Federal requirements in 30 CFR 938.16(ddddd) and (uuuuu).
§ 89.141(d) (plans for mining beneath EPACT structures)
Section 89.141(d) (relating to subsidence control: application requirements) is amended to require a description of the measures an operator will take to protect EPACT structures. The descriptions are to be based on subsidence control performance measures described in § 89.142a (d)(1)(i) if mining will result in planned subsidence or § 89.142a(d)(1)(ii) if mining will not result in planned subsidence. These amendments are incorporated to satisfy the Federal requirements in 30 CFR 938.16(ggggg) and (hhhhh).
§ 89.142a(b) (access for structure surveys)
Section 89.142a(b) is amended to incorporate a new provision which advises structure owners to allow mine operators access to conduct premining and postmining surveys of their structures and property. The subsection points out the purpose and importance of premining and postmining surveys and is intended to encourage structure owners to allow operators access for performing surveys. Although the provisions of this subsection are not binding, the Department may consider denial of access a basis for supporting an operator's claim that damage minimization is unfeasible. This provision has been added since the publication of the proposed rulemaking.
§ 89.142a(c) (suspension of mining)
Section 89.142a(c) is amended to authorize the Department to suspend mining beneath a public building, public facility, church, school, hospital, impoundment with a storage capacity of 20 acre-feet or more, body of water with a volume of 20 acre-feet or more or body of water or aquifer that serves as a significant source to a public water supply system, if an operator's previous measures have failed to prevent material damage or failed to maintain the reasonably foreseeable use of these structures or features. This amendment is incorporated to satisfy the Federal requirement in 30 CFR 938.16((iiiii).
§ 89.142a(d) (requirements for mining beneath EPACT structures)
Amended § 89.142a(d) establishes specific standards for mining beneath EPACT structures other than those subject to the more stringent protection standards in § 89.142a(c). Subsection (d)(1)(i) sets forth standards that apply to underground mining that results in planned subsidence and subsection (d)(1)(ii) sets forth standards that apply to underground mining that does not result in planned subsidence.
An operator using a mining technology that results in planned subsidence is required to take measures to minimize material damage, unless the structure owner consents, in writing, to allow material damage or the operator demonstrates that it would cost more to perform the necessary damage minimization measures than to repair the resultant damage. An operator is not, however, relieved of the obligation to perform damage minimization measures, if the resultant damage would constitute a threat to health or safety.
An operator using a mining technology that does not result in planned subsidence is required to take measures to prevent material damage to EPACT structures using measures, such as backstowing or backfilling of voids, leaving solid coal or coal pillars in place for support or performing surface measures that will enable the structures to withstand subsidence if and when it occurs.
The amendments to § 89.142a(d)(1) are in response to the Federal requirement in 30 CFR 938.16(jjjjj). Subsection (d)(3) is also incorporated to reflect the provision in section 5(e) of the BMSLCA (52 P. S. § 1406.5) that general requirements to prevent or minimize material damage do not prohibit planned subsidence in a predictable and controlled manner or the standard method of room and pillar mining.
§ 89.142a(f)(1) (prompt response to structure damage claims)
Section 89.142a(f)(1) is amended to clarify an operator's obligation to repair or compensate for structure damage in a prompt manner. The term ''prompt'' is not defined but is interpreted to mean as soon as practical considering site conditions, potential repair and compensation alternatives and other relevant factors. This requirement is incorporated to satisfy Federal requirements in 30 CFR 938.16(tttt) and (kkkkk).
§ 89.142a(f)(1) (coverage of permanently affixed appurtenant structures and improvements)
Section 89.142a(f)(1) is amended to incorporate several Federally required changes with respect to ''permanently affixed appurtenant structures and improvements'' covered by subsidence damage repair and compensation provisions.
Subsection (f)(1)(iii), which pertains solely to EPACT structures, now provides coverage for all structures and improvements that are appurtenant to dwellings used for human habitation, in place at the time of mining and susceptible to damage by underground mining operations. Former restrictions requiring structures and improvements to be in place on specific dates prior to mining and located within the mine boundaries are deleted in the final-form rulemaking. The former requirement that structures must be ''securely attached to the land surface,'' as incorporated through the former definition of ''permanently affixed appurtenant structures'' in § 89.5, is also deleted. These amendments are in response to Federal requirements in 30 CFR 938.16(uuuu), (fffff) and (lllll) and the OSM's partial supersession of section 5.4(a)(3) of the BMSLCA.
Subsection (f)(10)(i) is also amended to provide that structures used in conjunction with publicly accessible commercial, industrial and recreational buildings must be ''securely attached to the land surface'' to qualify for damage repair and compensation. This provision retains the existing interpretation of section 5.4(a)(1) of the BMSLCA, which is not affected by the OSM requirements.
§ 89.143a(c) (filing structure damage claims)
Section 89.143a(c) (relating to subsidence control: procedure for resolution of subsidence damage claims), as amended, allows owners of damaged structures to file claims with no minimum waiting period. The amendment is in response to 30 CFR 938.16(xxxx) and (nnnnn) of the OSM rule.
§ 89.143a(c) (statute of limitations for filing structure damage claims)
Section 89.143a(c) is amended to clarify the time frames in which landowners may file claims for structure damage with the Department. The amendment deletes the 2-year claim filing deadline as it relates to EPACT structures but retains the deadline for claims involving damage to non-EPACT structures. This amendment satisfies the requirements of 30 CFR 938.16(xxxx) and (nnnnn) while retaining the provisions of section 5.5(b) of the BMSLCA, which were not affected by the OSM's supersession.
§ 89.143a(d) (investigations and orders relating to the repair of structure damage)
Amended § 89.143a(d)(1) imposes an obligation on the Department to provide investigation results to the property owner and mine operator within 10 days of completing a structure damage claim investigation. This amendment satisfies the Federal requirement in 30 CFR 938.16(yyyy).
Subsection (d)(3), which describes actions the Department will take upon finding that an operator's underground mining operations caused damage to a structure, is amended to clarify the Department's authority to require prompt repair or prompt compensation for structure damage. Amended subsection (d)(3) clarifies that the only reason for extending the time for compliance with a Department order is the Department's determination that further subsidence damage may occur to the same structure. These amendments are in response to Federal requirements in 30 CFR 938.16(zzzz) and (ooooo).
§ 89.144a (denial of access for premining or postmining structure surveys)
Section 89.144a (relating to subsidence control: relief from responsibility) is amended to incorporate two provisions regarding the effect of denying access to an operator to perform a premining or postmining structure survey or damage minimization measures. Amendments to subsections (a) and (b) clarify that denial of access to an EPACT structure does not automatically result in a release of responsibility for damage as it does in the case of a non-EPACT structure. New subsection (b) provides that, in the case of an EPACT structure an operator is responsible for all damage that the Department or the structure owner can show, by a preponderance of evidence, to be the result of the operator's underground mining operations. This amendment is made in response to the Federal requirements in 30 CFR 938.16(ppppp) and is authorized under the OSM's partial supersession of section 5.4(c) of the BMSLCA.
The second amendment to § 89.144a pertains to damage that could have been prevented if an operator had been provided access to perform damage minimization measures. New subsection (c) provides that an operator is not responsible for the portion of structure damages, which the operator can show, by a preponderance of evidence, could have been prevented had the structure owner provided the operator access to perform a premining survey and to implement damage minimization measures. This amendment was added between proposed and final-form rulemaking in response to a public comment. It was not required by the OSM.
§ 89.145a(a) (water supply survey requirements)
Amendments to § 89.145a(a)(1) revise the deadline for performing premining water supply surveys. Under the revised standard, an operator must complete a premining survey prior to the time a water supply is susceptible to mining-related effects. This creates a flexible standard which allows the Department to establish specific time frames or distance limits based on local geologic and hydrologic conditions and the observed effects of previous mining. Requirements regarding the timing of premining surveys will be established by the Department at the time of permit issuance or permit renewal. The deadlines established by this section do not supersede the Department's authority to require water quality and quantity information at the time of permit application or permit renewal for all water supplies that may be affected during the succeeding permit term in accordance with § 89.34(a)(1)(i) (relating to hydrology).
Amended subsection (a)(1) establishes specific conditions under which the collection of some or all survey information may be waived. Under the amended paragraph, 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 when an operator would have to damage a building to gain access to a well or spring.
The amendments to § 89.145a(a)(1) reflect Federal requirements set forth in 30 CFR 938.16(qqqqq).
§ 89.145a(b) (prompt replacement of water supplies)
Section 89.145a(b) is amended to clarify an operator's obligation to ''promptly'' restore or replace water supplies affected by underground mining operations. The term ''promptly'' is not defined but is intended to ensure that restoration or replacement is accomplished as soon as practical considering site-specific conditions.
Section 89.145a(b) is also amended to clarify that a restored or replacement water supply must be capable for serving both the premining and reasonably foreseeable uses of the original water supply.
The amendments to § 89.145a(b) reflect Federal requirements in 30 CFR 938.16(iiii) and (rrrrr).
§ 89.145a(e) (provision of temporary water)
Section 89.145a(e) is amended to incorporate several new requirements applicable to situations when EPACT water supplies are affected by underground mining activities. Subsection (e)(2) provides that temporary water must be provided ''promptly'' after the operator or the Department determines that effects are due to the operator's underground mining activities and that the landowner or water user is without a readily available alternate source of water. The requirement for prompt action applies regardless of whether the affected supply lies inside or outside the rebuttable presumption area. Amended subsection (e)(3) requires that temporary water service be sufficient to satisfy all of the affected water user's needs. A water user's needs are considered to include 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, provided those needs were within the capacity of the original water supply. These amendments are in response to Federal requirements in 30 CFR 938.16(sssss) and (ttttt).
§ 89.145a(f) (compensation for increased cost of restored or replacement water supply)
Section 89.145a(f) is amended to establish revised standards applicable to the costs of operating and maintaining restored or replacement water supplies. A restored or replacement water supply that is no more costly to operate and maintain than the original water supply is considered to meet the requirements of this section. If the operation and maintenance costs of the restored or replacement water supply are higher that those of the original water supply, the operator must make provisions to permanently cover the increased costs. Upon agreement with the landowner, the operator can satisfy its obligation regarding increased cost through a one time payment in an amount covering the present worth of the increased annual operation and maintenance cost for a period agreed to by both parties.
Section 89.145a(f) was amended between proposed and final rulemaking to establish the same cost criteria for all water supplies covered by BMSLCA rather than establishing separate cost criteria for EPACT and non-EPACT water supplies. The amendments with respect to EPACT water supplies were driven by the Federal requirements in 30 CFR 938.16(ddddd) and (uuuuu).
§ 89.146a(c) (department investigation of water supply claims)
Amended 86.146(c) (relating to water supply replacement: procedure for resolution of water supply damage claims) imposes an obligation on the Department to provide investigation results to the property owner and mine operator within 10 days of completing a water supply claim investigation. This amendment satisfies the Federal requirement in 30 CFR 938.16(wwwww).
§ 89.152 (special provisions relating to water supply replacement)
New § 89.152(a)(1) (relating to water supply replacement: special provisions) establishes requirements applicable to situations when an EPACT water supply has been affected and cannot be restored or replaced with a water supply meeting the criteria in § 89.145a(f). In these situations, an operator is required to compensate the property owner for the reduction in the fair market value of the property or to purchase the property for its fair market value immediately prior to the time the water supply was affected. An operator may only pursue one of the aforementioned compensation remedies if the Department determines that a suitable water supply cannot be developed.
New subsection (a)(2) provides for agreements between operators and landowners, which waive the restoration or replacement of an EPACT water supply. These agreements are subject to the Department's prior determination that a replacement water supply can be feasibly developed for the property on which the affected water supply was located. An operator may be required to submit information demonstrating the availability of water for future development if the information needed to make this determination is not included in the permit application.
New subsection (a)(3) presents three statutory defenses an operator may raise in defending against a claim of liability for contamination, diminution or interruption of an EPACT water supply. One defense is that the alleged problem existed prior to and was not worsened by the operator's underground mining activity. This defense must be based on valid premining survey results documenting that the problem existed prior to the time the water supply was susceptible to the effects of the operator's underground mining activities. Another defense is that the problem occurred more than 3 years after the completion of all ''underground mining activities''--a term which includes all activities involved in the operation of an underground coal mine, including activities associated with the maintenance of the postclosure mine pool. The third defense is that the problem is due to a factor other than the operator's underground mining activity. The list of available defenses under § 89.152a(a)(3) does not include the defense based on the landowner's or water user's failure to submit a claim within 2 years of the date of contamination, diminution or interruption. This defense is no longer available in cases involving EPACT water supplies following the OSM's partial supersession of section 5.1(b) of the BMSLCA.
The amendments are incorporated in § 89.152 to satisfy Federal requirements in 30 CFR 938.16(nnnn), (oooo), (qqqq) and (rrrr). Restrictions regarding the use of compensation in settlements involving EPACT water supplies are authorized under the OSM's partial supersession of section 5.2(g) and (h) of the BMSLCA. The elimination of the 2-year statute of limitations on filing claims for effects on EPACT water supplies is authorized under the OSM's partial supersession of section 5.1(b) of the BMSLCA.
Global changes regarding effects of ''underground mining operations''
Various regulations pertaining to information requirements and performance standards for the control and repair of subsidence damage are amended by replacing the term ''underground mining'' with ''underground mining operations.'' The term ''underground mining operations'' is defined in § 89.5 to include underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining. In comparison, the term ''underground mining'' only includes the extraction of the coal. These changes affect § 89.141(d) and (d)(9)--(11), regarding the content of subsidence control plans; § 89.142a(a), regarding general requirements for subsidence control; § 89.142a(f)(1) and (2), regarding repair of damage to structures; § 89.142a(g)(1), regarding the protection of utilities; § 89.142a(h)(1) and (2), regarding the protection of perennial streams; § 89.142a(i), regarding prevention of hazards to human safety; § 89.143a(a), regarding claims of subsidence damage; and § 89.143a(d)(1)--(3), regarding Department investigations and enforcement actions. These amendments are incorporated to satisfy Federal requirements in 30 CFR 938.16(mmmmm) and (bbbbbb).
Editorial changes
The final-form rulemaking includes several changes that are intended to support or clarify regulations amended by this final-form rulemaking.
Section 89.141(d)(3) is amended to delete the list of measures that can be used to protect 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-ft or more and aquifers and bodies of water that serve as significant sources to public water supply systems. The measures in former paragraph (3) are only a subset of a larger list of measures that may be used for protecting this group of structures and features. The complete list of measures appears in the performance standard in § 89.142a(c). To avoid confusion, the incomplete list of measures is deleted from § 89.141(d)(3), which is simply an information requirement.
In § 89.142a(c)(1), the term ''surface features'' is replaced with the term ''features'' to more accurately describe the types of features within the referenced group. The features described in paragraph (1) include aquifers, which are usually not regarded as ''surface features.''
Section 89.142a(d) is amended to incorporate new subsection (d)(3), which reflects the provision in section 5(e) of the BMSLCA that ''nothing in this subsection shall be construed to prohibit planned subsidence in a predictable and controlled manner or the standard method of room and pillar mining.'' The provision is included to more fully reflect the intent of paragraph 5(e) of the BMSLCA, which serves as the statutory basis for the new damage prevention and minimization requirements in § 89.142a(d)(1).
The headings of one section and one subsection are amended to more accurately reflect their revised content. The heading of § 89.142a(d) is changed from ''general measures to prevent or minimize subsidence'' to ''protection of certain EPACT structures and agricultural structures.'' The heading of § 89.152 is changed from ''water supply replacement: relief from responsibility'' to ''water supply replacement: special provisions.''
In § 89.143a, the requirement for the Department to notify a mine operator of the receipt of a structure damage claim is moved from subsection (c) to subsection (d). The purpose of this amendment is to clarify and separate Department responsibilities from the responsibilities of landowners.
The final-form rulemaking also includes various stylistic changes that were made to conform to standards for drafting regulations.
The amendments to § 86.152(a) were submitted to the Mining and Reclamation Advisory Board (MRAB) because this section applies to bond adjustments for surface mining activities as well as bond adjustments for underground mining activities. The MRAB endorsed the proposed rulemaking at its meeting on April 24, 2003, and the final-form rulemaking at its meeting on January 6, 2004. The other provisions of this final-form rulemaking were not presented to the MRAB because they pertain exclusively to underground mining activities and are outside the purview of the MRAB.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Board approved publication of the proposed rulemaking at its meeting on July 15, 2003. The proposed rulemaking was published at 33 Pa.B. 4554. Public hearings were held on October 15, 2003, in Indiana, PA, and on October 16, 2003, in Washington, PA. Comments were accepted from September 13, 2003, to November 12, 2003.
Twenty persons submitted timely comments in response to the proposed rulemaking. Commentators included the Pennsylvania Coal Association, Citizens for Pennsylvania's Future, Wheeling Creek Watershed Conservancy, Mountain Watershed Association, Ten Mile Protection Network, Concern About Water Loss due to Mining and 14 private citizens. The Independent Regulatory Review Commission (IRRC) also submitted comments in regard to the proposed rulemaking.
The following is a discussion of the comments received during the public comment period, organized according to subject matter.
Period of liability for water supply effects
One commentator objected to changes that would expand the definition of ''underground mining activities'' to include ''post closure mine pool maintenance.'' The commentator noted that this amendment would effectively extend an operator's liability for water supply effects as much as 25 years into the future. The commentator considered this amendment an attempt to invalidate the provisions of section 5.2(e)(2) of the BMSLCA, which the commentator interpreted as limiting liability to a 3-year period after mining in a specific area of a mine. The commentator also noted that this change was not specifically required by the OSM.
The Department does not agree with the commentator's assertions. The amendment to the definition of ''underground mining activities'' is intended to clarify that liability for water supply effects does not expire prior to the date regulatory jurisdiction would end under the Federal regulatory program. Although this amendment is not specifically required by the OSM, it clarifies a concept that is essential to demonstrating compliance with Federal requirements relating to the duration of liability. Under the Federal program, liability for water supply effects has no termination date and remains in effect for as long as the OSM maintains regulatory jurisdiction over a mine site. OSM jurisdiction normally extends for the duration of mining and reclamation operations and until 5 years after the final augmented seeding. To be as effective, the regulations must provide a period of liability that expires no sooner than the date on which the OSM would normally terminate jurisdiction. These regulations meet this requirement by clarifying that the liability created by section 5.1(a)(1) of the BMSLCA and terminated by section 5.2(e)(2) of the BMSLCA extends from the time of mining until 3 years after the completion of the last ''underground mining activity.'' In most cases the final ''mining activity'' will be the maintenance of the postclosure mine pool. This period of liability is based on a reasonable interpretation of section 5.2(e)(2) of the BMSLCA, which extends liability 3 years after the occurrence of ''mining activity.''
The amendment to the definition is not an attempt to circumvent the intent of the General Assembly. Section 5.2(e)(2) of the BMSLCA provides a release of liability if contamination, diminution or interruption occurs more than 3 years after ''mining activity.'' Considering that section 5.1(a) of the BMSLCA establishes liability for all water supply effects caused by ''underground mining operations,'' there is no reason to conclude that the liability referred to in section 5.2(e)(2) of the BMSLCA would be limited to effects arising from the act of coal extraction. Water supply effects can result from various ''mining activities'' such as underground pumping operations, the drilling of shafts and mine entries, the removal of underground roof supports, surface support areas and the control of the postclosure mine pool. It is reasonable to conclude that the 3-year period referred to in section 5.2(e)(2) of the BMSLCA was intended to run from the time of occurrence of the last ''mining activity'' that could result in water supply contamination, diminution or interruption.
The interpretation that liability extends from the time of the last mining activity is not new. This interpretation was explained in the final-form rulemaking published at 28 Pa.B. 2761 (June 13, 1998) on mine subsidence control, subsidence damage repair and water supply replacement. The preamble at 28 Pa.B. 2778 clarifies that liability for water supply impacts ''extends from the time of underground mining to the period ending 3 years after reclamation has been completed.'' The preamble discussion goes on to explain that ''this [period] should be sufficient to cover virtually all water supply impacts resulting from the underground mine.''
Contrary to the commentator's assertion, it is appropriate to clarify the duration of liability through regulation. As illustrated by the commentator's statements, the statutory phrase ''mining activity'' is subject to differing interpretations, making obvious the need to clarify this matter with a regulatory definition.
Separate from the issue of statutory interpretation, the Commonwealth's interests are best served by ensuring that operators are held liable for effects arising from the development of postclosure mine pools. These pools, which develop in mine workings after cessation of pumping, have been documented to cause contamination of adjacent water supplies many years after the time of coal extraction. It is important that the regulations provide an effective remedy for these problems.
Another commentator recommended that § 89.152(a)(2) be amended to delete all references to a 3-year period of liability. The commentator observed that some water supplies could go without replacement if losses occurred more than 3 years after mining activity ceased, even though the affects were due to underground mining activities.
Although the Department understands the commentator's concerns, it would be inappropriate to delete references to the 3-year period in section 5.2(e)(2) of the BMSLCA. In the Department's experience, the liability period afforded by § 89.152(a)(2) should be sufficient to cover virtually all water supply problems resulting from the underground mining activities. Since this level of protection is available under the current provisions of the BMSLCA, it is the preferred means of satisfying the OSM requirements relating to the duration of liability.
Distinction between EPACT and non-EPACT structures and water supplies
Two commentators expressed overall objections to amendments that establish separate requirements for EPACT and non-EPACT structures and water supplies. The commentators regarded this ''dual'' system of regulation as cumbersome and overly complicated. One commentator further asserted that the distinctions were unjustified and not unauthorized under the existing law of the Commonwealth. One commentator also thought the resulting system would result in unequal protection of surface properties.
Although the Department acknowledges the commentators' concerns, a ''dual'' system is necessary if the Commonwealth's regulatory program is to comply with Federal requirements for state primacy programs and, at the same time, maintain conformance with the BMSLCA. The OSM action at 69 FR 71551 superseded the provisions of the BMSLCA that were in conflict with the Federal SMCRA, laying the foundation for the two class system. The OSM's action effectively nullifies certain statutes of limitations, releases of liability and compensation options as they relate to EPACT structures and water supplies. These provisions do, however, remain in effect for structures and water supplies that are covered by the BMSLCA but are outside the scope of the Federal regulations. Consequently, there is a need to distinguish between these two different classes of structures and water supplies.
Bond adjustments
One commentator recommended that bond amounts should be sufficient to cover the replacement value of individual homes and properties.
The Department does not agree with the commentator's recommendation. Neither the State nor the Federal program requires a bond covering the total replacement value of all homes and properties in advance of mining. The Department has established bond calculation procedures that take into account the fair market value of the property that is expected to be damaged during the succeeding term of the permit, the level of damage that property is expected to sustain and the amount of damage that may accumulate prior to the time enforcement is warranted. These procedures are described in Technical Guidance 563-2504-101. The OSM has reviewed the Department's bond calculation procedures and found them to be no less effective than the Federal regulations, which require bonds to be posted only in cases when damage has not been repaired within 90 days.
Two commentators asserted that bonding requirements should be revised to include the costs of water supply replacement. One of the commentators found fault with the Department's proposal to use liability insurance as the basis for assuring the replacement of affected water supplies, citing several examples of situations when insurance proved ineffective in securing timely water supply replacement.
Although the Department recognizes the commentator's concern, the BMSLCA provides no basis for requiring bonds to ensure water supply replacement. Recognizing this limitation, the Department decided to address this matter through liability insurance, which is required by § 86.168 (relating to terms and conditions for liability insurance) as a condition for maintaining a mining license. Section 86.168, which sets forth the terms and conditions for liability insurance, requires all policies to cover loss or diminution in quantity or quality of public or private sources of water in an amount at least equal to the general liability portion of the policy. Section 86.168 further provides that the amount of this coverage must be at least $500,000 per occurrence and $1 million aggregate.
In its proposal to the OSM, the Department indicated it would review permittees' insurance policies at the time of permit issuance and annually thereafter to ensure that coverage is sufficient to restore or replace all water supplies that may be damaged and need to be replaced at any point during the mining operation. After reviewing the Department's proposal and the provisions of § 86.168, the OSM concluded that the assurance of water supply replacement provided by the Commonwealth's regulations was no less effective than that provided by the Federal regulations. See 69 FR 71528. The OSM also observed that the Federal regulations in 30 CFR 800.14(c) (relating to bonding and insurance requirements) allow the use of insurance instead of bond for purposes of assuring water supply replacement.
As a matter of record, the Department recently resolved one of the cases cited as an example of the ineffectiveness of liability insurance. The case involved several water supply claims that were pending resolution when the operator declared bankruptcy. In this case, the Department successfully intervened on behalf of the affected property owners to have the insurance company pay for the replacement of all affected water supplies. This case illustrates that liability insurance can serve as an effective means of ensuring water supply replacement in cases when an operator defaults on his liability.
Since the time of the proposed rulemaking, the Department has performed an analysis to determine whether mine operators are carrying sufficient amounts of insurance to cover the replacement of affected water supplies. Based on a review of claims filed during the past 5 years, the Department found that the minimum coverage required by § 86.168 was sufficient to cover water supply replacement liability in all cases. There was one case when the Department took action to ensure that the insurance policy covered all pending and potential water supply replacement claims and there was one case when an operator's liability came close to the minimum limits (which apply to claims filed within the 1-year term of an insurance policy). The Department also annually reviews the adequacy of insurance for pending and potential future claims before renewing an operator's mining license. The results of this analysis further illustrate the effectiveness of liability insurance as a tool for ensuring water supply replacement.
Requirements for mining beneath EPACT structures
One commentator asserted that it will be impossible for operators to comply with the new damage minimization and prevention standards in § 89.142a(d)(1), if § 89.144a is amended to allow owners of EPACT structures to deny access for premining surveys.
The Department disagrees with the commentator's assertion. Section 89.142a(d)(1)(i) only requires operators to minimize material damage to the extent technologically and economically feasible. Under most circumstances, denial of access would make it technologically and economically unfeasible to perform damage minimization measures.
One commentator recommended amending § 89.142a(d) to prevent structure damage when mining results in planned subsidence.
The Department does not agree with this recommendation. The purpose of amending § 89.142a(d) is to ensure that the protection afforded EPACT structures is no less effective than the protection afforded by the Federal regulations. The corresponding Federal regulations allow operators to minimize rather than prevent material damage when using mining technology that results in planned subsidence. The only exceptions are when underground mining operations would affect a public building, church, school or hospital in which case material damage must be prevented. The amendments to § 89.142a(d) incorporate these same provisions.
One commentator thought the amendments to § 89.142a(d) would diminish the protection afforded to public buildings, churches, schools and hospitals and certain impoundment under § 89.142a(c). The commentator observed that § 89.142a(d)(1)(i) requires operators using mining methods that result in planned subsidence to minimize rather than prevent damage to noncommercial buildings--a broad term that includes public buildings, churches and hospitals.
The commentator's concern is acknowledged; however, § 89.142a(d)(1)(i) includes language that addresses this issue. Subsection (d)(1) specifically excludes noncommercial buildings protected under § 89.142a(c). This exclusion clarifies that noncommercial buildings enumerated in § 89.142a(c) are to be protected in accordance with § 89.142a(c). This clarification was included in the proposed rulemaking and is not changed in the final-form rulemaking. It is further noted that § 89.142a(d)(1)(i) does not pertain to the impoundments and water bodies enumerated in § 89.142a(c).
One commentator recommended changing § 89.142a(d)(1)(i)(B)to place decisions regarding the feasibility of damage minimization and threats to human health and safety in the hands of the surface owner.
The Department does not agree with this recommendation. Section 89.142a(d)(i), which is based on the Federal regulation in 30 CFR 817.121(a)(2)(ii) (relating to subsidence control), does not identify the party responsible for determining the feasibility of damage minimization measures or the party responsible for identifying threats to human health and safety. In most cases, the mine operator will make preliminary decisions regarding these matters, subject to oversight and intervention by the Department. Property owners who are notified of impending mining may inquire about the operator's plans for damage minimization and, if dissatisfied, request the Department to evaluate the plans for conformance with § 89.142a(d)(i).
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