[35 Pa.B. 5775]
[Continued from previous Web Page] Prompt response to structure damage claims
One commentator asserted that it is inappropriate for the Department to cease adherence to the requirements of section 5.5(b) of the BMSLCA which provides a 6-month period for operators and homeowners to negotiate settlements without Department involvement. The commentator further asserted that there is no reason to allow owners of non-EPACT structures to file claims sooner than 6 month after damage, because these structures are outside the scope of the Federal regulations.
The Department acknowledges the commentator's position, but notes that the former regulatory provisions that barred the filing of claims prior to the end of the 6-month period were removed to comply with OSM requirements. Moreover, section 9 of the BMSLCA (52 P. S. § 1406.9) gives the Department broad authority to issue orders ''as are necessary to aid in the enforcement of the provisions of this act.'' The Department notes that although section 9 of the BMSLCA allows the Department to issue orders prior to the expiration of the 6-month negotiation period, it rarely has cause to do so. Subsidence is typically incomplete within the 6-month time interval so the full extent of damage remains unknown. Department actions prior to the expiration of the 6-month negotiation period would involve primarily orders for emergency repairs necessary to address health, safety or nuisance concerns. It is further noted that the provisions of section 9 of the BMSLCA apply to both EPACT structures and other structures protected under the BMSLCA.
One commentator recommended that the regulations be revised to allow landowners to choose who will repair the damage to their properties.
Although the Department acknowledges the commentator's recommendation, it notes that neither the BMSLCA nor the Federal regulations give landowners the specific right to choose who will repair subsidence damage. Under both programs the mine operator is the party responsible for making or arranging for repairs or providing compensation to the landowner. If there is a dispute over the scope of repair work or the standards to be met, the Department would make the final decision after considering the wishes of both the mine operator and the landowner.
One commentator recommended revising the regulations to require the Department to pay subsidence damage claims out of the Mine Subsidence Insurance Program to ensure prompt, quality repairs and to subsequently seek reimbursement from the operator.
The Department does not support this recommendation because the intent of the BMSLCA and the regulations is to place the cost of repairs squarely on the shoulders of the mine operator who caused the damage. Moreover, implementation of this recommendation would require significant changes to the Department's Mine Subsidence Insurance program, which are beyond the scope of this final-form rulemaking.
Coverage of dwellings and related structures
One commentator objected to amendments that delete the dates on which a permanently affixed appurtenant structure or improvement has to be in place in order to qualify for damage repair and compensation.
The Department acknowledges the commentators objection. However, amendments deleting these qualifications are necessary to comply with OSM requirements. Furthermore, the OSM has superseded the statutory provisions that were the basis for these qualifications.
One commentator objected to changes that would make mine operators liable for damages to permanently affixed appurtenant structures and improvements that were not ''securely attached to the ground.'' The commentator asserted that mine operators should not be responsible for damage to aboveground swimming pools or any other ''appurtenant structures'' such as small outbuildings, sheds, gazeboes and similar ''structures'' that could be easily dismantled and removed by the landowner before mining and reinstalled afterwards.
The Department does not agree with the commentator's argument. The provisions of 30 CFR 817.121(c)(5) (relating to subsidence control) unequivocally require repair of or compensation for all ''occupied residential dwellings and structures related thereto'' in place at the time of mining. The Federal regulations do not require that a structure be attached to the land surface in order to qualify for repair or compensation provisions, nor do they waive liability for damage to structures that could have been dismantled or moved by the landowner. Moreover, in situations when damage can be prevented by moving or dismantling a structure, 30 CFR 817.121(a) places this obligation squarely on the operator. For the Commonwealth's regulatory program to be no less effective than the Federal regulatory program, it is necessary to remove the qualification that the structures and improvements in § 89.142a(f)(1)(iii) be securely attached to the land surface.
One commentator recommended adding a requirement that damaged septic systems must be replaced rather than repaired.
The Department sees no reason to require replacement in all cases. Section 89.142a(f)(1) requires that damaged septic systems be promptly and fully rehabilitated, restored or replaced. The determination of whether a system should be repaired or replaced depends on the level and extent of damage. Minor damage to pipes and tanks can often be repaired or corrected by replacing the damaged component rather than replacing the entire system.
Statute of limitations on filing claims for structure damage and water supply loss
One commentator objected to amending §§ 89.143(c) and 89.152 to delete the 2-year statute of limitations for filing claims of damage to EPACT structures and water supplies.
The Department acknowledges the commentator's position, however, these changes are required to comply with the Federal requirements in 30 CFR 938.16(jjjj), (xxxx), (nnnnn) and (yyyyy). Furthermore, the OSM has superseded the statutory provisions in sections 5.1(b) and 5.5(b) of the BMSLCA, which serve as the basis for these statutes of limitations, to the extent these provisions would limit an operator's liability to repair or compensate for damage to an EPACT structure or to restore or replace an EPACT water supply.
One commentator asserted that since there are no statutes of limitations on water supply and structure claims under Federal law, there should be no statutes of limitations in State law.
The Department does not agree with the commentator's assertion. The OSM's supersession of sections 5.1(b) and 5.5(b) of the BMSLCA only nullifies statutes of limitations in regard to claims filed for EPACT structures and water supplies. The statutes of limitations in sections 5.1(b) and 5.5(b) of the BMSLCA remain in effect for non-EPACT structures and water supplies. These provisions cannot be disregarded in the final-form rulemaking.
Denial of access and release of liability
One commentator objected to amendments to § 89.144a which would remove the relief of liability that was previously available to operators who were denied access to perform premining or postmining surveys of EPACT structures. The commentator asserted that the amendments would remove the incentive for structure owners to grant operators access to perform surveys and damage minimization measures. The commentator asserted that premining surveys are necessary to distinguish between damages caused by underground mining operations and damages caused by other factors and expressed concern that, in the absence of premining survey information, operators could be held liable for damages they did not cause. The commentator also asserted that the denial of access to perform damage minimization measures could expose an operator to liability for additional damages that could have been prevented. The commentator also expressed concern that a structure owner could stop full extraction mining beneath his property by denying an operator access to perform measures needed to prevent irreparable damage. As a final point, the commentator asserted that denial of access to perform a postmining survey deprives an operator of the right to engage in reasonable discovery concerning the nature of a damage claim.
The Department acknowledges the commentator's concerns. However, the amendments to § 89.144a are necessary to comply with Federal requirements in 30 CFR 938.16(vvvv) and (ppppp). Furthermore, the OSM has superseded the statutory provision, which relieves an operator of liability if a landowner denies access for a premining or postmining survey, to the extent it applies to EPACT structures.
Contrary to the commentator's assertion, it is possible to distinguish subsidence damage from other types of damage and deterioration in the absence of recent premining survey information. The Department is often faced with the need to distinguish between subsidence damage and other types of damage or structural deterioration in its mine subsidence insurance program when baseline information may be nonexistent or many years old at the time of investigation. The Department has established procedures and criteria that it uses to identify damages caused by mine subsidence and to distinguish those damages from damages caused by other factors. The Department uses these same procedures and criteria in investigating claims filed under its subsidence regulatory program.
The Department agrees with the commentator's assertion that denial of access to perform a premining survey and damage minimization measures could result in more damage to a structure than would have otherwise occurred. In recognition of this possibility, a provision is added to § 89.144a to address situations when an operator has been denied access to perform measures necessary to minimize damage. This new provision in § 89.144a(c) provides that an operator is not responsible for that portion of structure damages, which the operator can show, by a preponderance of evidence, could have been prevented if the structure owner had provided access to conduct a premining survey and implement damage minimization measures.
The Department acknowledges the commentator's concern that some property owners could attempt to use denial of access as a means to block full extraction mining beneath a structure that is expected to incur irreparable damage. However, the Department does not regard the provisions of § 89.144a as granting structure owners the right to deny access for mitigation necessary to prevent irreparable damage. Furthermore, when the Department determines that the proposed mining will cause irreparable damage and the operator agrees to take approved measures to minimize the impacts resulting from subsidence but the structure owner denies access to implement the mitigation measures, the operator will have met the legal requirements of section 9.1 of the BMSLCA (52 P. S. § 1406.9a) and the denial of access will not prevent the mining.
The commentator's assertion that the denial to conduct a postmining survey equates to denial of the right of a defendant to conduct reasonable discovery is incorrect. If an operator were denied access to perform either a premining or postmining survey, the Department or the property owner would still be required to assemble information needed to substantiate the extent of damage and prove that the operator's underground mining operations were the cause. This information would be discoverable in legal proceedings before the Environmental Hearing Board (EHB) or the courts, if the operator were to appeal the Department's order to repair or compensate for the alleged damage.
One commentator asserted that in no instance should an operator be relieved of liability when subsidence caused by mining is determined to be the cause of damage. The commentator also asserted that landowners who deny access should not be required to provide conclusive evidence that a company's underground mining operations were the cause of the damage.
The Department believes that the amendments to § 89.144a address the commentator's concerns. Final § 89.144a(b) provides that an operator is liable for damage to an EPACT structure if the Department or the landowner can show by a preponderance of evidence that the damage was caused by the operator's underground mining operations. The standard of evidence used in subsection (b) is less stringent than the ''conclusive evidence'' cited by the commentator.
One commentator recommended that landowners should be allowed to select home inspectors or contractors to perform premining and postmining surveys.
The Department notes that § 89.144a does not prevent landowners from hiring inspectors to perform premining and postmining surveys. However, landowners must allow mine operators equal access to perform premining or postmining surveys of their own. Landowners who deny access may forfeit certain rights to repair or compensation if damaged structures do not qualify as EPACT structures.
One commentator felt it was a conflict of interest to designate the mine operator as the party responsible for performing premining surveys.
The Department does not agree with the commentator's assertion. The primary obligation to perform premining surveys rests with the mine operator under both the Chapter 89 and the Federal regulations. Landowners are free to conduct their own surveys at their expense. The Department does not have the staff or resources to perform these surveys.
Water supply survey requirements
One commentator objected to the amendments in § 89.145a(a). The commentator questioned whether the Department has sufficient staff to take on this additional obligation. The commentator felt that a fixed 2,500-foot distance should be used to ensure that surveys are performed sufficiently in advance of mining.
The Department does not agree with the commentator's recommendation regarding the use of a fixed 2,500-foot distance for defining premining survey requirements. The OSM objects to using fixed separation distances for this purpose, which is why § 89.145a(a) is amended to incorporate a flexible standard.
In regard to the commentator's other concern, the Department does not regard this amendment as substantially increasing the workload on permit review staff. The determination of appropriate sampling distances is closely related to other determinations reviewers must make during the course of application review, such as the identification of water supplies which are susceptible to mining-related effects. Reviewers' determinations will be facilitated through the use of Department databases and permit files, which contain information on distances between mining and affected water supplies.
Provision of temporary water
One commentator asserted that there was no reason to distinguish between EPACT and non-EPACT water supplies in amending § 89.145a(e) to incorporate requirements relating to the prompt provision of temporary water. The commentator noted that the BMSLCA already provides comparable protection for all ''domestic water supplies.''
The Department does not agree with the commentator's assessment. There is a need to clarify that § 89.145a(e) applies to EPACT water supplies. The Federal requirement to promptly provide temporary water applies to a wider range of water supplies than the ''domestic water supplies'' acknowledged by the commentator. The Federal regulations also apply to water supplies that provide drinking water to industrial plants, commercial buildings, noncommercial buildings and recreational facilities. To be no less effective than the Federal regulations, § 89.145a(e) must require the prompt provision of temporary water in all situations when affected water supplies fall within the scope of the Federal water supply replacement requirements. It is therefore necessary to clarify that the provisions of § 89.145a(e) are applicable to all cases involving EPACT water supplies.
One commentator objected to the use of water buffaloes (temporary water storage tanks) as temporary water sources. The commentator questioned whether anyone tests the water stored in these tanks.
The Department notes that use of storage tanks and hauled water is a permissible means of providing temporary water under both State and Federal regulatory programs. In this Commonwealth, the bulk water haulers that provide temporary water service are subject to the requirements of Chapter 109 (relating to safe drinking water), which include the periodic testing of delivered water.
Standards for quantity of replacement water supplies
Two commentators recommended that § 89.145a(b) should be further revised to match the Federal standard in 30 CFR 701.5 (relating to definitions), which requires replacement water supplies to be equivalent in quantity and quality to premining water supplies. One of the commentators further asserted that if replacement standards are left unchanged, the landowner should be the one who determines the scope of existing and reasonably foreseeable uses.
The Department does not agree with the commentators' recommendations. The OSM has already determined that the Commonwealth's water supply replacement provisions, which rely on actual and reasonably foreseeable use as the standard, are no less effective than Federal standards for water supply replacement. See 66 FR 67011 (December 27, 2001). Since the BMSLCA establishes a use-based standard for determining the adequacy of replacement water supplies, it would be inappropriate to substitute alternative criteria.
In regard to the second recommendation, the existing regulations provide ample opportunity for landowners to provide input regarding the existing and reasonably foreseeable uses of water supplies. Section 89.145a(a) requires an operator to gather information on existing and reasonably foreseeable uses as part of the premining survey of a water supply. It also requires an operator to provide this information to the landowner within 30 days. At that point, the landowner can accept the operator's description or provide the Department with information that justifies consideration of additional uses.
Cost of operating and maintaining a replacement water supply
One commentator supported the amendments to § 89.145a(f)(5) that make operators liable for all increases in costs associated with the operation and maintenance of a restored or replacement water supply. However, the commentator did not support the change in paragraph (5)(i) that allows a mine operator and landowner to negotiate the time period for which compensation is to be provided. The commentator observed that even if this provision is based on 30 CFR 701.5, it represents a lower standard than the Commonwealth now has because the Department currently requires operators to pay increased costs in perpetuity. The commentator asserted that when State regulations are more effective than their Federal counterparts, the OSM cannot require that they be amended to match Federal requirements.
The Department agrees with the commentator's recommendation. Section 89.145a(f)(5) has been changed in the final-form rulemaking to clarify that the requirement to provide for the permanent payment of increased operating and maintenance costs applies to cases involving EPACT water supplies as well as cases involving other types of water supplies. Although the remaining portion of paragraph (5) tracks the language of the Federal regulation, the basic requirement to provide for the ''permanent payment'' of the increased cost is now clearly stated. This amendment also makes the provisions of § 89.145a(f)(5) consistent with Pennsylvania case law.
One commentator objected to the new provision in § 89.145a(f)(5)(i) which allows for agreements setting forth the terms of payment for increased operation and maintenance costs. The commentator believes that many so-called ''agreements'' between landowners and coal operators leave room for unfair, unchallenged settlements and that property owners are often at disadvantage in negotiating agreements with mine operators.
The Department acknowledges the commentator's concerns, but notes that voluntary agreements for the payment of increased operation and maintenance costs are permissible under both State and Federal regulations. The Department has always offered and will continue to offer assistance to property owners who are faced with signing an agreement.
One commentator indicated that it did not oppose the amendment to § 89.145a(f)(5) which would obligate our mine operators to pay all increased costs of operating and maintaining a restored or replaced domestic water supply.
The Department acknowledges the commentator's position, but notes that § 89.145a(f)(5) was changed between proposed and final rulemaking to apply to all water supplies not just EPACT water supplies.
One commentator recommended that the ''de minimis'' cost concept in § 89.145a(f)(5) should be deleted with respect to all water supplies covered by the BMSLCA. The commentator asserted that the EHB never intended this concept to be defined or used as it is currently. The commentator noted that what is ''de minimis'' to some may not be ''de minimis'' to others.
Section 89.145(f)(5) in this final-form rulemaking has been amended to delete the ''de minimis'' cost concept in regard to both EPACT and non-EPACT water supplies. The Department agrees that operators should be liable for all increased costs attributable to the operation and maintenance of a restored or replacement water supply. The Department also wishes to avoid creating two separate regulatory standards for the cost of replacement water supplies which are based on the same statutory provision. In view of this change, the term ''de minimis cost increase'' and its definition are deleted from § 89.5, since the term is not used elsewhere in Chapter 89.
Compensation for loss of water supply
One commentator advocated the use of improved prediction techniques and more careful permitting so that cases when water supplies cannot be replaced become rare or nonexistent.
The Department acknowledges the commentator's recommendation and notes that it continually strives to improve its predictive capabilities and to ensure that replacement options are available for all water supplies that are likely to be impacted.
One commentator asserted that the conditions under which an operator is allowed to provide compensation rather than restore or replace an affected water supply should be the same for all water supplies covered by the BMSLCA and not be restricted to EPACT water supplies.
The Department does not agree with the commentator's assertion. It is necessary to distinguish between the conditions under which compensation may be used to satisfy EPACT water supply claims and the conditions under which compensation may be used to satisfy non-EPACT water supply claims. The OSM has only superseded section 5.2(g) and (h) of the BMSLCA to the extent that this section is inconsistent with the Federal SMCRA. This being the case, the OSM's action only limits the use of compensation with respect to settlements involving EPACT water supplies. The compensation options and restrictions on Department actions remain applicable to settlements involving water supplies that are outside the scope of the Federal program. It is therefore necessary to reflect this distinction in § 89.152.
One commentator asserted that the proposed amendment to § 89.152(b), which allows a property owner to waive the provision of a restored or replacement water supply, makes the Commonwealth's regulations more liberal insofar as water replacement goes, instead of more restrictive as the OSM said they should be. The commentator recommended amending § 89.152(b) to require that a portion of the compensation paid under a waiver agreement be held in escrow to guarantee water replacement in case the property owner or a successor property owner desires such replacement in the future. The commentator believed that if waiver agreements are determined to be unconstitutional, coal companies may be deemed liable for water supply replacement irrespective of the provisions of these waiver agreements.
The Department does not agree with the commentator's recommendations. The provision in § 89.152(b) is based on Federal regulatory requirements relating to the replacement of affected water supplies. (See the definition of ''replacement of water supply'' in 30 CFR 701.5.) The OSM has found this provision to be no less effective than those requirements. Moreover, this provision is clearly within the scope of section 5.3(a) of the BMSLCA (52 P. S. § 1406.5c(a)), which provides that ''[n]othing contained in this act shall prohibit the mine operator and landowner at any time after the effective date of this section from voluntarily entering into an agreement establishing the manner and means by which an affected water supply is to be restored or an alternate supply is to be provided or providing fair compensation for such contamination, diminution or interruption.''
The Department also notes that the commentator's recommendation concerning the use of escrow to ensure the future development of a replacement water supply is not authorized by the BMSLCA. It is also beyond the scope of the OSM's requirements.
One commentator recommended that requirements provide for replacement of all affected water supplies.
The Department believes that the amendments to § 89.152(a) adequately ensure the restoration or replacement of EPACT water supplies that are affected by underground mining operations. Section 89.152(b), which addresses non-EPACT water supplies, also promotes the restoration or replacement of affected water supplies but includes provisions that allow claims to be settled through compensation when operators decide restoration or replacement is not practical. These two distinct standards are necessary because the OSM's final rule only results in a partial supersession of section 5.2(g) and (h) of the BMSLCA, leaving intact provisions that allow claims for non-EPACT water supplies to be settled though compensation.
The Department also notes that the water supply replacement requirements in § 89.145a and the special water supply replacement provisions in § 89.152 only apply to springs with documented water supply uses. Springs that are not used for domestic, commercial industrial, recreational or agricultural purposes do not meet the definition of ''water supply'' in § 89.5.
One commentator asserted that mine operators should be held more accountable for the damage they cause. The commentator expressed particular concern about farms that rely on springs and ponds for agricultural uses.
The Department acknowledges the commentator's concerns and notes that the law requires restoration or replacement of affected agricultural water supplies. It is rare that a water supply cannot be repaired or replaced. The Department does not allow mining that would diminish a water supply, if it determines that restoration or replacement is unlikely to be successful. The Commonwealth's existing law and regulations include provisions designed to protect property values in cases when agricultural water supplies cannot be restored or replaced. In cases when water supplies cannot be restored or replaced, a property owner may insist that the mine operator purchase the property at its fair market value immediately prior to the time of water loss or provide compensation equal to the reduction in fair market value resulting from the water loss. These options are not in any way diminished by this rulemaking.
Availability of replacement water supply
One commentator asserted that the Department should deny permit applications that fail to demonstrate that mining operations will not pollute, disrupt or destroy the waters of this Commonwealth. The commentator cited a recent situation when the Department granted funds to pay for the expansion of a public water system necessitated by the destruction of private water supplies by an underground mining operation. The commentator felt that the economic feasibility of replacing water resources should not be a concern of citizens or the Department and that if replacement is not feasible, mining should not take place.
The Department believes that this final-form rulemaking, in combination with the Federal supersession of sections 5.2(g) and (h) of the BMSLCA, will serve to tighten requirements relating to the restoration and replacement of EPACT water supplies. Under the amended law and regulations, operators must restore or replace affected EPACT water supplies except in situations when the Department determines that a permanent replacement source meeting regulatory standards for adequacy cannot be developed. Cost alone cannot be the basis for this determination. Under the new requirements, an operator could be faced with water supply replacement expenses amounting to several times the value of the affected property. The elimination of the option to compensate rather than restore or replace affected EPACT water supplies should, in itself, cause operators to consider more carefully which supplies their operations are likely to affect and how those supplies will be restored or replaced.
The Department further notes that the partial supersession of section 5.2(h) of the BMSLCA removes restrictions that previously limited its authority to order the replacement of affected EPACT water supplies. This authority, in combination with the Department's current application preview procedures, should provide greater assurance of water supply replacement. As part of an application review, the Department ensures that suitable plans are in place for the restoration or replacement of all water supplies that are likely to be affected by proposed operations.
One commentator asserted that the feasibility of providing municipal water service to affected properties should be proven before any mining permit is issued.
The Department agrees and notes that provisions are currently in place to address the commentator's concern. Section 89.36(c) (relating to protection of the hydrologic balance) requires operators to describe how they will replace water supplies affected by their underground mining operations. The Department now requires permit applications to include information showing that all water supplies that are likely to be affected by underground mining operations can be restored or replaced. In addition, the amendments to § 89.152 adopted in this final-form rulemaking provide greater assurance that affected EPACT water supplies will be restored or replaced.
Department assistance to landowners
One commentator recommended that the Department should be responsible to handle damage claims for affected property owners to promptly restore their property, water and lives back to normal. The commentator felt that property owners should not be expected to negotiate their own settlements with the mining company unless they so choose.
The Department acknowledges the commentator's recommendation, but notes that the claim resolution provisions of the BMSLCA are predicated, for the most part, on interactions between the mine operator and affected property owner. The Department's role is to intervene at the property owner's request or upon recognition of a potentially hazardous situation. The Department is always willing to provide assistance when requested to do so.
One commentator noted that, contrary to statements in the preamble to the proposed rulemaking, the Department does not have surface subsidence agents available to assist property owners in areas when room-and-pillar mining takes place. The commentator noted that resolving problems is a huge problem for landowners in these areas.
The Department acknowledges that it has not assigned surface subsidence agents to service property owners in room-and-pillar mining areas. These agents are assigned to longwall mining areas, which tend to experience a higher number of subsidence damage claims and water supply impacts. The Department does, however, provide property owners in all underground mining areas with fact sheets explaining the remedies to which they are entitled. The fact sheets include an 800 number through which affected property owners can contact the Department and request assistance at any time.
OSM requirements and proposed rules
Several commentators submitted comments that were directed primarily at the OSM's proposed rulemakings and the Federal requirements in 30 CFR 938.16. Some commentators presented arguments against the OSM's proposal to supersede inconsistent provisions of the BMSLCA and some commentators argued that the OSM should supersede additional provisions of the BMSLCA. Some commentators also argued that the OSM should lift certain requirements in 30 CFR 938.16, while others argued that the Commonwealth's proposed rulemaking did not satisfy those requirements. The OSM considered these comments in formulating its final rulemakings at 69 FR 71528 and 71551, but made no changes in response to these arguments. Similarly the OSM did not lift any of its requirements in 30 CFR 938.16 in response to these arguments.
Issues beyond the scope of this rulemaking
A large group of comments concerned matters that were beyond the scope of this final-form rulemaking. Many commentators, representing primarily citizens interests, argued for changes in law and regulation that would provide greater protection of farms, homes, water supplies, streams and water resource in general. One commentator recommended increasing taxes on coal reserves.
Another group of comments came from private citizens who wished to report their experiences with incidents of subsidence damage and water loss or who wished to express their apprehension about the prospect of having their properties undermined. Some of these comments dealt with water supply problems that occurred prior to the effective date of the BMSLCA's water supply replacement provisions.
IRRC comments
IRRC recommended that the final-form rulemaking not be approved before the OSM finalized its action superseding the inconsistent provisions of the BMSLCA. As noted previously, the OSM rule superseding the inconsistent provisions of the BMSLCA became final on December 9, 2004. The Commission's condition is therefore deemed to be satisfied.
F. Benefits, Costs and Compliance
Benefits
The final-form rulemaking will benefit the Commonwealth, the underground coal mining industry and coal field residents by simplifying program requirements. Currently, a dual enforcement program exists in this Commonwealth under which the Department enforces the provisions of the BMSLCA and Chapter 89 and the OSM enforces the provisions of the Federal regulations in cases when the Federal regulations provide more effective remedies than the BMSLCA and Chapter 89. The dual enforcement arrangement has, at times, created confusion regarding the obligations of mine operators, the remedies available to affected landowners and agency jurisdiction. The final-form rulemaking will eliminate the need for dual enforcement and consolidate all requirements relating to subsidence damage repair and compensation and the replacement of water supplies affected by underground coal mining operations in Chapter 89.
The final-form rulemaking will also enable the Commonwealth to fulfill its primacy obligations and retain primary enforcement responsibility over underground coal mining operations.
Compliance Costs
The final-form rulemaking slightly increases the costs of preparing permit applications and subsidence control plans. These additional costs will affect 28 companies that operate underground bituminous coal mines in this Commonwealth. No additional cost will be imposed on government entities or the public. The final-form rulemaking simplifies mine operators' obligations in regard to the repair of subsidence damage and replacement of affected water supplies.
Compliance Assistance Plan
The Department will provide written notification to all underground coal mine operators to inform them of the final promulgation of this rulemaking. The Department will also hold roundtable meetings with mine operators and consultants to explain program changes and answer questions.
The Department will also conduct outreach to landowners in active mining areas to assist them in understanding their rights and obligations under the amended law and regulations. The Department will update its fact sheets explaining the remedies provided by the amended law and regulations and the procedures for obtaining those remedies and will distribute the revised fact sheets to landowners in active mining areas. The Department will continue to deploy surface subsidence agents to meet with affected landowners and assist them in obtaining the remedies provided by the amended law and regulations.
Paperwork Requirements
The final-form rulemaking requires the Department to update its fact sheets explaining the remedies provided by the amended law and regulations and the procedures for obtaining those remedies.
G. Pollution Prevention
The matters affected by this final-form rulemaking do not pertain to pollution prevention or control.
H. Sunset Review
This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 3, 2003, the Department submitted a copy of the notice of proposed rulemaking, published at 33 Pa.B. 4554, to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on August 24, 2005, the final-form rulemaking was deemed approved by the House and Senate Committees. IRRC met on August 25, 2005, and approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
J. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The regulations do not enlarge the purpose of the proposed rulemaking published at 33 Pa.B. 4454.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in section C of this preamble.
K. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 86 and 89, are amended by amending §§ 86.1, 86.151, 86.152, 89.5, 89.141, 89.142a, 89.143a, 89.144a, 89.145a, 89.146a and 89.152 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately.
KATHLEEN A. MCGINTY,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 35 Pa.B. 5068 (September 10, 2005).)
Fiscal Note: Fiscal Note 7-385 remains valid for the final adoption of the subject regulations.
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