[Federal Register Volume 68, Number 183 (Monday, September 22, 2003)]
[Proposed Rules]
[Pages 55106-55134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23986]



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Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 938



Pennsylvania Regulatory Program; Proposed Rules

  Federal Register / Vol. 68, No. 183 / Monday, September 22, 2003 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-143-FOR]


Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Proposed rule; public comment period and notice of public 
hearing on a proposed action.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the 
Pennsylvania regulatory program (the ``Pennsylvania program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). Pennsylvania proposes revisions to its program in response to our 
final rulemaking of December 27, 2001 (66 FR 67010) regarding mine 
subsidence control, subsidence damage repair or compensation, and water 
supply replacement or restoration. In that rulemaking, we required 
changes to the Pennsylvania program to make it no less effective than 
the Federal regulations. This amendment addresses those required 
changes. The specific changes Pennsylvania is proposing to make are 
detailed below. Pennsylvania has also submitted supplementary 
information that appears to satisfy some of the required changes 
without the need of additional regulations or modification to existing 
regulations or statutes. That information is also detailed below. 
Pennsylvania intends to revise its program to be consistent with the 
corresponding Federal regulations and/or SMCRA.
    In this proposed rule, we are asking for comments regarding the 
changes Pennsylvania is proposing to make to its regulations related to 
the implementation of the Bituminous Mine Subsidence and Land 
Conservation Act (BMSLCA). In a separate proposed rulemaking, also 
published today, we are asking for comments on proposed supersession of 
some of the provisions of BMSLCA. We will be holding public hearings on 
both the proposal for superseding certain provisions of BMSLCA and 
Pennsylvania's proposed changes to its regulations, as noted below, on 
the dates indicated below under DATES. Pennsylvania will also be 
holding public hearings on its proposed changes to its regulations. In 
order to accommodate those who wish to speak at both Pennsylvania's and 
our public hearings, the hearings will be held on the same days and at 
the same locations, but at different times.
    This document gives the times and locations that the Pennsylvania 
program is available for your inspection, the comment period during 
which you may submit written comments on this proposed action, and the 
procedures that we will follow for the public hearings.

DATES: We will accept written comments on this proposal until 4 p.m., 
e.s.t. October 22, 2003. We will hold public hearings on the proposal 
on October 15, 2003, at the Best Western University Inn in Indiana, 
Pennsylvania at 3 p.m. and at 7 p.m. and on October 16, 2003, at the 
Holiday Inn Meadow Lands in Washington, Pennsylvania at 3 p.m. and at 7 
p.m.. We will accept requests to speak at a hearing until 4 p.m., 
e.s.t. on October 7, 2003.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to George Rieger, Acting Field Office 
Director at the address listed below.
    You may review copies of the Pennsylvania program, this proposal, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays.

George Rieger, Acting Director, Harrisburg Field Office, Office of 
Surface Mining Reclamation and Enforcement, Harrisburg Transportation 
Center, Third Floor, Suite 3C, 4th and Market Streets, Harrisburg, 
Pennsylvania 17101, Telephone: (717) 782-4036, E-mail: 
[email protected].
Joseph P. Pizarchik, Director, Bureau of Mining and Reclamation, 
Pennsylvania Department of Environmental Protection, Rachel Carson 
State Office Building, PO Box 8461, Harrisburg, Pennsylvania 17105-
8461, Telephone: (717) 787-5103.

FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (717) 782-
4036, E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Description of the Proposed Action
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Pennsylvania Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of the Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the Pennsylvania program on July 30, 1982. You can find background 
information on the Pennsylvania program, including the Secretary's 
findings, the disposition of comments, and conditions of approval of 
the Pennsylvania program in the July 30, 1982, Federal Register (47 FR 
33050). You can also find later actions concerning Pennsylvania program 
and program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Description of the Proposed Action

    By letter dated August 27, 2003, (Administrative Record No. PA 
841.64) as modified on September 3, 2003 (Administrative Record No. PA 
841.65), Pennsylvania sent us a proposed amendment to its program under 
SMCRA (30 U.S.C. 12501 et seq.). Pennsylvania sent the amendment in 
response to the required program amendments at 30 CFR 938.16(hhhh)--
(bbbbbb). We required those amendments in our December 27, 2001, final 
rule, (66 FR 67010) as a result of our review of Pennsylvania's 
amendment to the BMSLCA and its implementing regulations regarding 
repair or compensation for structures and restoration or replacement of 
water supplies damaged by underground mining operations.
    Pennsylvania responded to the required amendments related to its 
regulations in a pre-submission assistance request dated February 25, 
2002 (Administrative Record No. PA 841.49). Pennsylvania noted in the 
pre-submission assistance request that it was unable to address the 
required amendments involving changes to the BMSLCA because the 
Pennsylvania General Assembly is the only State entity with the 
authority to make statutory changes. While Pennsylvania can recommend 
changes to the statute it has no control over their adoption or the 
time frame in which the General Assembly might enact them. Accordingly, 
in a separate rulemaking located in this same Federal Register issue, 
OSM is proposing to supersede those sections of the BMSLCA that it 
found to conflict with SMCRA.
    OSM reviewed the pre-submission assistance request and submitted 
its

[[Page 55107]]

written comments to Pennsylvania on April 25, 2002 (Administrative 
Record No. PA 841.54). Pennsylvania and OSM also conducted a series of 
meetings to discuss the required amendments. Both agencies believed 
that jointly exploring resolutions to the required amendments would be 
beneficial in securing any necessary program changes as quickly as 
possible and eliminate the uncertainty of enforcement of BMSLCA to all 
affected groups. The amendment that is the subject of this proposed 
rule reflects the outcome of those meetings. Pennsylvania's proposed 
amendment that is the subject of this rulemaking includes a summary of 
each of the required amendments from the December 27, 2001, final rule, 
a discussion section that reflects the results of the meetings between 
Pennsylvania and OSM, and Pennsylvania's proposal to resolve each of 
the required amendments. For organizational purposes, the regulation 
changes proposed by Pennsylvania and the information submitted in 
response to the required amendments are presented according to the 
required amendments at 30 CFR 938.16. Additionally, Pennsylvania is 
proposing several amendments to Chapters 86 and 89 that we did not 
specifically require. Pennsylvania contends these amendments are needed 
to clarify or supplement regulatory provisions that were changed in 
response to the required amendments. These proposed changes will be 
noted following the discussion on the required amendments.
    Regulation at 30 CFR 938.16(hhhh). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
section 5(b) of the BMSLCA to delete the reference to section 6(a) of 
the BMSLCA, which no longer exists, and replace it with a reference to 
6(b).
    Discussion: In the December 27, 2001, final rule, OSM found this 
incorrect cross-reference in its review of the 1994 amendments to 
BMSLCA. Section 5(b), which sets forth an operator's obligation to file 
a bond, references section 6(a) as the site describing the scope, terms 
and criteria for subsidence bonds. Section 6(a) of the amended statute 
is a vacant site. The targeted descriptions actually appear in section 
6(b). This error resulted from a failure to re-designate section 6(b) 
to 6(a) during the 1994 amendment process.
    In this submission, the Pennsylvania Department of Environmental 
Protection (PADEP) asserts that the cross reference to section 6(a) is 
an obvious error. It is PADEP's position that when there is an obvious 
error in a statute, the principles governing statutory construction in 
Pennsylvania require that section 5(b) of the BMSLCA be read in 
conjunction with section 6. Bloom v. Cmwlth., Dept. of Environmental 
Resources, 101 Pa. Cmwlth. 8, 515 A.2d 361 (1986). Furthermore, PADEP 
asserts that section 1932 of the Statutory Construction Act, 1 Pa. 
C.S.A. section 1932, requires that parts of statutes, which are in pari 
materia, shall be construed together. The parts are in pari materia 
when they relate to the same person or things. Sections 5(b) and 6(b) 
both relate to the PADEP, applicants and bonding. When construing 
sections 5(b) and 6 together PADEP argues that it is obvious that the 
cross-reference in section 5(b) should be to section 6(b) and that 
section 5(b) can be read as cross-referencing section 6(b) and not 
6(a).
    PADEP further asserts that in People United to Save Homes v. 
Department of Environmental Protection, 1999 EHB 457, aff'd, 789 A.2d 
319 (Pa. Cmwlth. 2001), the parties litigated the appropriate bond 
required under the BMSLCA. Neither the Environmental Hearing Board nor 
the Commonwealth Court had any difficulty with the erroneous cross 
reference in section 5(b).
    Sections 5(b) and 6(b) both impose on Pennsylvania the duty to 
require the applicant to post a bond or other security. PADEP maintains 
that the erroneous cross-reference in section 5(b) does not negate the 
obligation imposed by section 6(b). In summary, Pennsylvania is 
proposing that this reference does not interfere with its authority to 
require a bond or make its bonding requirements any less effective than 
Federal bonding requirements.
    PADEP's Proposed Resolution: PADEP proposes that sections 5(b) and 
6(b) remain unchanged, as it has satisfied the requirement in 30 CFR 
938.16(hhhh).
    Regulation at 30 CFR 938.16(iiii). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
section 5.1(a)(1) of the BMSLCA to require the prompt replacement of 
all water supplies affected by underground mining operations.
    Discussion: In the December 27, 2001, final rule, OSM found that 
neither BMSLCA nor Chapter 89 expressly require operators to achieve 
permanent restoration or replacement of a water supply in a ``prompt'' 
manner. Although sections 5.1(a) and (b) include provisions requiring 
the prompt provision of temporary water, there is no explicit 
requirement to achieve permanent restoration or replacement in a 
``prompt'' manner.
    In this submission, PADEP asserts that although section 5.1(a)(1) 
does not explicitly indicate that permanent restoration or replacement 
must take place in a prompt manner, it does not bar Pennsylvania from 
acting to require prompt restoration or replacement. It is PADEP's 
position that water supply claims should be resolved as quickly as 
possible. PADEP therefore proposes to resolve this matter by inserting 
the term ``promptly'' in section 89.145a(b), which sets forth the basic 
requirement to restore or replace an affected water supply. With this 
change, PADEP argues that Pennsylvania's water supply replacement 
requirements will be no less effective than the Federal counterpart 
requirements in 30 CFR 817.41(j) in regard to the timeliness of 
permanent restoration or replacement.
    PADEP further asserts that it is unnecessary to amend section 
5.1(a)(1) to accomplish this change since it is silent on what is 
timely.
    PADEP's Proposed Resolution: PADEP proposes to resolve OSM's 
concern by amending 25 Pa. Code 89.145a(b), as follows:

    89.145a. Water supply replacement: performance standards.
* * * * *
    (b) Restoration or replacement of water supplies. When 
underground mining activities conducted on or after August 21, 1994, 
affect a public or private water supply by contamination, diminution 
or interruption, the operator shall promptly restore or replace the 
affected water supply with a permanent alternate source which 
adequately serves the premining uses of the water supply and any 
reasonably foreseeable uses of the water supply. The operator shall 
be relieved of any responsibility under the Bituminous Mine 
Subsidence and Land Conservation Act (52 P. S. sections 1406.1-
1406.21) to restore or replace a water supply if the operator 
demonstrates that one of the provisions of section 89.152 (relating 
to water supply replacement: relief from responsibility) relieves 
the operator of further responsibility. This subsection does not 
apply to water supplies affected by underground mining activities 
which are covered by Chapter 87 (relating to surface mining of 
coal).
* * * * *
    Regulation at 30 CFR 938.16(jjjj). Amendment Required by December 
27, 2001 Federal Register Notice: OSM directed Pennsylvania to remove 
section 5.1(b) of the BMSLCA, which establishes a two-year limit on 
filing water supply damage claims. OSM made a similar finding in 30 CFR 
938.16(yyyyy) with regard to the corresponding regulatory requirement 
in 25 Pa. Code 89.152(a)(4).
    Discussion: In the December 27, 2001, final rule, OSM stated that 
section 5.1(b) provides that a mine operator shall not be liable to 
restore or replace a water

[[Page 55108]]

supply if a claim is made more than two years after the date of impact. 
OSM further noted that neither SMCRA nor the Federal regulations 
contain a similar waiver of liability.
    In disapproving section 5.1(b) and the corresponding regulation, 
OSM found that the two-year filing deadline rendered Pennsylvania's 
water supply replacement requirements less effective than Federal 
counterpart requirements. OSM reasoned that the filing deadline could 
result in release from replacement liability for some EPAct water 
supplies. OSM also expressed concern that the two-year statute of 
limitations could preclude a citizen suit because the landowner would 
not know that the PADEP wasn't taking action until the two years had 
elapsed.
    In this submission, PADEP acknowledges that section 5.1(b) provides 
a statute of limitations that could serve as a basis for releasing an 
operator of the obligation to replace an affected water supply. As a 
result, PADEP agrees that OSM must supersede this provision to the 
extent it is inconsistent with SMCRA. It is PADEP's position that 
section 5.1(b) be superseded only to remove the statute of limitation 
as it relates to EPAct water supplies. PADEP concludes that limiting 
the superseded section as described will serve to satisfy the Federal 
requirement in 30 CFR 938.16(jjjj), while preserving Pennsylvania law 
to the maximum extent possible.
    In this submission, PADEP also proposes to delete the corresponding 
provision in 25 Pa. Code 89.152 to the extent it relates to EPAct water 
supplies.
    Proposed Resolution: PADEP proposes to amend 25 Pa. Code 89.152(a) 
to remove the two-year filing deadline in regard to claims involving 
EPAct water supplies as follows:

    89.152. Water supply replacement: special provisions.
    (a) In the case of an EPAct water supply, an operator may not be 
required to restore or replace the water supply if one of the 
following has occurred:
    (1) The Department has determined that a replacement water 
supply meeting the criteria in section 89.145a(f) (relating to water 
supply replacement: performance standards) cannot be developed and 
the operator has purchased the property for a sum equal to the 
property's fair market value immediately prior to the time the water 
supply was affected or has made a one-time payment equal to the 
difference between the property's fair market value determined 
immediately prior to the time the water supply was affected and the 
fair market value determined at the time payment is made.
    (2) The landowner and operator have entered into a valid 
voluntary agreement under section 5.3(a)(5) of The Bituminous Mine 
Subsidence and Land Conservation Act (52 P.S. 1406.5) which does not 
require restoration or replacement of the water supply and the 
Department has determined that an adequate replacement water supply 
could feasibly be developed.
    (3) The operator can demonstrate one of the following:
    (i) The contamination, diminution or interruption existed prior 
to the underground mining activities as determined by a premining 
survey, and the operator's underground mining activities did not 
worsen the preexisting contamination, diminution or interruption.
    (ii) The contamination, diminution or interruption occurred more 
than three years after underground mining activities occurred.
    (iii) The contamination, diminution or interruption occurred as 
the result of some cause other than the underground mining 
activities.
    (b) In the case of a water supply other than an EPAct water 
supply, an operator will not be required to restore or replace a 
water supply if the operator can demonstrate one of the following:
    (1) The contamination, diminution or interruption existed prior 
to the underground mining activities as determined by a premining 
survey, and the operator's underground mining activities did not 
worsen the preexisting contamination, diminution or interruption.
    (2) The contamination, diminution or interruption is due to 
underground mining activities which occurred more than 3 years prior 
to the onset of water supply contamination, diminution or 
interruption.
    (3) The contamination, diminution or interruption occurred as 
the result of some cause other than the underground mining 
activities.
    (4) The claim for contamination, diminution or interruption of 
the water supply was made more than 2 years after the water supply 
was adversely affected by the underground mining activities.
    (5) That the operator has done one of the following:
    (i) Has purchased the property for a sum equal to the property's 
fair market value immediately prior to the time the water supply was 
affected or has made a one-time payment equal to the difference 
between the property's fair market value determined immediately 
prior to the time the water supply was affected and the fair market 
value determined at the time payment is made.
    (ii) The landowner and operator have entered into a valid 
voluntary agreement under section 5.3 of The Bituminous Mine 
Subsidence and Land Conservation Act (52 P.S. 1406.5c) which does 
not require restoration or replacement of the water supply or 
authorizes a lesser amount of compensation to the landowner than 
provided by section 5.3(a)(5) of The Bituminous Mine Subsidence and 
Land Conservation Act.
    (c) * * *

    In this submission, PADEP indicated that in order for this change 
to become effective, OSM must set aside the language in section 5.1(b) 
to the extent this provision would relieve an operator of liability to 
restore or replace an EPAct water supply. Section 5.1(b) provides that:
* * * * *

    (b) A mine operator shall not be liable to restore or replace a 
water supply under the provisions of this section if a claim of 
contamination, diminution or interruption is made more than two 
years after the supply has been adversely affected.

* * * * *
    The proposal to supersede section 5.1(b) appears in a separate 
rulemaking located in this same Federal Register issue.
    Regulation at 30 CFR 938.16(kkkk). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
the clause in section 5.2(b)(2), which acknowledges that water supply 
claims may exist for periods up to three years prior to PADEP 
enforcement action. Pennsylvania must also amend its program as 
necessary to ensure that landowners receive investigation results 
within 10 days of the date PADEP completes its investigation.
    Discussion: In the December 27, 2001, final rule, OSM found two 
provisions of section 5.2(b)(2) that could potentially interfere with 
the prompt replacement of water supplies. One provision, which provides 
examples of compliance orders, includes language suggesting that PADEP 
could allow a claim to linger for as long as three years before taking 
an enforcement action. Another provision, describing PADEP 
responsibilities, allows PADEP as long as 45 days to report the 
findings of a water supply claim to an affected landowner.
    Regarding the three-year period, section 5.2(b)(2) includes 
descriptions of some of the types of orders PADEP may issue to require 
compliance with BMSLCA water supply replacement provisions. Among the 
examples provided are ``orders requiring the provision of a permanent 
alternate source where the contamination, diminution or interruption 
does not abate within three years of the date on which the supply was 
adversely affected.'' OSM interpreted this clause as potentially 
delaying the issuance of a water supply replacement order for three 
years. OSM viewed this delay as interfering with the requirement to 
promptly restore or replace an affected water supply, and, moreover, 
noted that it exceeded the Federal guideline on establishing permanent 
water supplies within two years of the date of impact (see 60 FR 
16727).

[[Page 55109]]

    As explained in the discussion under 30 CFR 938.16(iiii), PADEP 
intends to ensure that water supplies are replaced as promptly as 
possible. To this end, PADEP has committed to amending 25 Pa. Code 
89.145a(b) to clarify that the requirement is to ``promptly'' restore 
or replace the affected water supply. It is PADEP's position that the 
language in section 5.2(b)(2) does not prevent PADEP from taking action 
sooner than three years after the date of impact. In this submission, 
PADEP is asserting that it will not interfere with the general 
requirement to complete water supply replacement in a prompt manner. 
PADEP asserts that if anything, this language serves as guidance to 
PADEP that under no circumstances should permanent restoration or 
replacement take more than three years.
    In this submission, PADEP regards OSM's concern about the ``three-
year'' clause in section 5.2(b)(2) as effectively nullified by the 
proposed changes to 25 Pa. Code 89.145a(b). PADEP contends that there 
is no need to supersede this section because its primary purpose is to 
illustrate some of the conditions under which PADEP will issue orders 
and to describe the types of action PADEP will require.
    Regarding the investigation time frames, section 5.2(b)(2) provides 
that PADEP will commence investigations of claims of water supply 
impacts within ten days of notification. Within 45 days of notification 
PADEP is to make a determination of whether mining caused the water 
supply problems. OSM found that the timeframes described in this 
section did not meet the Federal guidelines for responding to citizens' 
complaints. Specifically, section 5.2(b)(2) does not require PADEP to 
notify a claimant of the findings of investigation within 10 days of 
completing the investigation. OSM required PADEP to amend its program 
to ensure that investigation results are provided to claimants in 
accordance with the time frames specified in 30 CFR 842.12. OSM made a 
similar finding in 30 CFR 938.16(wwwww) with regard to the implementing 
regulations at 25 Pa. Code 89.146a(c).
    In this submission, PADEP proposes to address OSM's concern by 
amending 25 Pa. Code 89.146a(c) to require the reporting of 
investigation results to claimants within 10 days of completing the 
investigation and maintains that there is no need to amend section 
5.2(b)(2).
    In this submission, PADEP asserts that the proposed amendment to 25 
Pa. Code 89.145a(b), which requires the prompt restoration or 
replacement of an affected water supply, and Pennsylvania's commitment 
to ensure prompt restoration or replacement, effectively nullify any 
concerns regarding the language in section 5.2(b)(2). (See proposal 
under 30 CFR 938.16(iiii) in this section).
    PADEP also proposes to amend 25 Pa. Code 89.146a(c) to address 
OSM's concerns regarding the timely reporting of investigation results 
to claimants.
    PADEP's Proposed Resolution: PADEP proposes to amend 25 Pa. Code 
89.145a(b) as described under 30 CFR 938.16(iiii) and to revise 25 Pa. 
Code 89.146a(c). The revision to 89.146a(c) reads as follows:

    89.146a. Water supply replacement: procedure for resolution of 
water supply damage claims.
* * * * *
    (c) If the affected water supply has not been restored or an 
alternate water supply has not been provided by the operator or if 
the operator provides and later discontinues an alternate source, 
the landowner or water supply user may so notify the Department and 
request that the Department conduct an investigation in accordance 
with the following procedure:
    (1) Within 10 days of notification, the Department will commence 
an investigation of landowner's or water supply user's claim.
    (2) Within 45 days of notification, the Department will make a 
determination of whether the contamination, diminution or 
interruption was caused by the operator's underground mining 
activities. The Department will notify all affected parties of its 
determination within 10 days of completing the investigation.
    (3) If the Department determines that the operator's underground 
mining activities caused the water supply to be contaminated, 
diminished or interrupted, the Department will issue any orders that 
are necessary to assure compliance with The Bituminous Mine 
Subsidence and Land Conservation Act (52 P.S. sections 1406.1-
1406.21) and this chapter.

* * * * *
    Regulation at 30 CFR 938.16(llll). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to delete 
the phrase, ``Wherever a mine operator, upon request, has been denied 
access to conduct a premining survey and the mine operator thereafter 
served notice upon the landowner by certified mail or personal service, 
which notice identified the rights established by sections 5.1 and 5.3 
and this section, was denied access and the landowner failed to provide 
or authorize access within ten days after receipt thereof, then such 
affirmative proof shall include premining baseline data, provided by 
the landowner or the department, relative to the affected water 
supply.'' from section 5.2(d) of the BMSLCA. Pennsylvania's regulation 
at 25 Pa. Code 89.153 included a similar provision for denial of survey 
access; however, the regulations did not require ``pre-mining baseline 
data'' as a condition of proof.
    Discussion: In this submission, PADEP proposes that OSM does not 
need to disapprove the statutory language in section 5.2(d) of the 
BMSLCA. PADEP has reviewed the statutory language at section 5.2(d) and 
has determined that it will use any and all evidence in cases of water 
supply impacts and that this section will not interfere with its 
ability to use any evidence other than ``premining baseline 
information'' in cases of water supply impacts. In conclusion, PADEP is 
assuring OSM that the requirements in 25 Pa. Code 89.153 are sufficient 
to prohibit an operator from refusing to replace an adversely affected 
supply and from requiring only ``premining baseline data'' as a 
condition of proof of adverse effect.
    Proposed Resolution: PADEP proposes that section 5.2(d) of the 
BMSLCA remain unchanged based on its interpretation of its statute and 
regulations and argues that it has satisfied the requirement in 30 CFR 
938.16(llll).
    Regulation at 30 CFR 938.16(mmmm). Amendment Required by December 
27, 2001, Federal Register Notice: Section 5.2(e)(2) allows a mine 
operator to seek relief from liability for water supply impacts by 
affirmatively proving that the impacts occurred more than three years 
after mining activity. This provision is also reflected in 25 Pa. Code 
89.152(a)(2).
    In the December 27, 2001, final rule, OSM found that this provision 
rendered Pennsylvania's water supply replacement requirements less 
effective than those of the Federal program. Federal law and 
regulations relating to the replacement of EPAct water supplies do not 
limit the obligation to replace to any specific time period. OSM 
further indicated that subsidence can occur any time after mining and, 
accordingly, that an operator's liability extends indefinitely into the 
future.
    Discussion: During the joint meeting process, OSM noted that its 
regulations in 30 CFR 700.11 did provide for termination of 
jurisdiction over mining activities when all aspects of reclamation are 
observed to be complete or when the reclamation bond is released. OSM 
acknowledged that following bond release, it would no longer regard the 
former area of activity as an underground mining operation subject to 
the requirements of Federal law and regulation. While it is possible 
for water supply impacts to arise after

[[Page 55110]]

this point in time, OSM would not normally reassert jurisdiction unless 
it found that the decision to terminate jurisdiction was based on 
fraud, collusion, or misrepresentation of a material fact.
    Also during the joint meeting process, OSM and PADEP discussed 
technical considerations relating to the termination of jurisdiction 
and release of liability. It was noted that most water supply impacts 
occur in close association with the time of mining. This relationship 
is fostered by the basic requirement to either use a mining technique 
that results in planned subsidence or provide sufficient support to 
prevent unplanned subsidence (see 30 CFR 817.121(a) and 25 Pa. Code 
89.142a(a)(4)). PADEP asserts that water supply impacts tend to occur 
at the time of subsidence or upon the advance of mine workings into or 
adjacent to water supply aquifers. After workings are completed within 
an individual section of the mine, they become stable leaving little 
potential for additional subsidence-related impacts. At that point, the 
only remaining consideration is the effect of the mine pool that will 
develop after mine closure. In certain settings, the pool may influence 
adjacent aquifers causing pollution of water supplies. Impacts of this 
type occur within a few months to a decade after the closure of the 
entire mine. OSM's decision to terminate jurisdiction is based on the 
satisfaction of reclamation standards and not necessarily on the date 
of pool stabilization. PADEP considers the management of the post 
closure mine pool as falling within the scope of the term ``underground 
mining activities'' and bases its decision to release or retain 
liability on evidence of pool stability.
    Following discussions, OSM established three criteria that PADEP 
must meet in order to demonstrate that Pennsylvania's application of 
the three-year limit does not result in outcomes that are inconsistent 
with the Federal regulations. Those criteria are: (1) PADEP must show 
that its application of the three-year limit will not result in release 
of liability prior to the time OSM would terminate jurisdiction under 
the Federal regulations. Federal termination of jurisdiction normally 
occurs five years after the final augmented seeding, provided the 
operator demonstrates fulfillment of all reclamation requirements; (2) 
PADEP must show that it can reassert jurisdiction if a decision to 
release liability is based on fraud, collusion, or misrepresentation of 
a material fact; and (3) PADEP must show that the three-year limit does 
not interfere with a citizen's right to sue as provided under section 
520 of SMCRA.
    In this submission, PADEP maintains that it addresses OSM's 
criteria. Regarding the three-year limit vs. Federal termination of 
jurisdiction, PADEP asserts that Pennsylvania's three-year limit will 
always result in a longer duration of liability than OSM's termination 
of jurisdiction rule. Section 5.2(e)(2) and 25 Pa. Code 89.152(a)(2) 
mark the start of the three-year period at the time of the last 
``mining activity'' (a term that PADEP interprets to mean the last 
aspect of the reclamation). In every case, the last activity completed 
will be the management of the post closure mine pool, which, as 
previously noted, is the most likely cause of postmining water supply 
impacts. PADEP does not start the three-year period until it is 
convinced that the pool has stabilized. Mine pools typically take 
several years to a decade to reach a stable elevation and require an 
additional six months to a year of monitoring to verify stabilization. 
In the meantime, site reclamation, which is the basis for OSM's 
decision to terminate jurisdiction, moves forward according to a 
separate schedule that normally ends in advance of pool stabilization. 
PADEP assures OSM that its decision to release operator liability will 
always occur after the Federal termination of jurisdiction because the 
three-year period will always start at least two years after the final 
augmented seeding of the reclaimed surface sites. In addition, PADEP is 
proposing to amend the definition of ``underground mining activities'' 
to clarify that the term includes management of the post closure mine 
pool.
    Regarding the authority to reassert jurisdiction, PADEP contends 
that section 5.2(e) clearly provides for PADEP to retain jurisdiction 
when an operator's defense is based on fraud, collusion, or 
misrepresentation of a material fact. It requires the operator to 
provide affirmative proof that the last mining activity occurred more 
than three years before the time of water supply impact. If PADEP 
subsequently discovers that the operator's information regarding the 
three-year period is incorrect, PADEP maintains that it has authority 
to reject the operator's ``proof'' and deny the operator's defense. 
Most likely, this would involve PADEP's discovery of impacts from a 
mine pool that was prematurely reported to be stable. If PADEP found 
that the pool had continued to rise after the date provided by the mine 
operator, it would recalculate the three-year period and, if 
appropriate, reject the operator's defense. PADEP asserts that the 
provisions of section 5.2(e) actually provide greater authority than 
those of 30 CFR 700.11 because they allow PADEP to retain jurisdiction 
until it is satisfied that an operator's assertions are correct and, 
moreover, jurisdiction is never terminated where an operator's 
assertions are incorrect regardless of the reason for the error. 
Consequently, there is not a need for PADEP to reassert jurisdiction. 
Finally, it is PADEP's position that section 5.2(e) is not a 
termination of jurisdiction law. Section 5.2(e) establishes the grounds 
an operator can affirmatively use to be relieved of the obligation to 
replace a water supply. PADEP asserts that if an operator uses 
erroneous or fraudulent information the operator has failed to meet the 
affirmative defense requirements and would still be liable to replace 
the water supply and termination of jurisdiction is never an issue.
    PADEP also proposes that it has authority to deal with the 
submission of fraudulent information under sections 9 and 17.1 of the 
BMSLCA. Section 9 provides PADEP general authority to issue ``such 
orders as are necessary to aid in the enforcement of the provisions of 
this act.'' Such orders could include orders requiring replacement of 
water supplies in cases where an operator bases a defense against 
liability on fraud, collusion, or misrepresentation of a material fact. 
Section 17.1 defines the submission of false information as unlawful 
conduct under the act and exposes the person submitting the false 
information to enforcement proceedings and penalties.
    Regarding preservation of citizens' right to sue, the right of 
citizens to sue for the effects of underground coal mining is described 
in section 13 of the BMSLCA. This section was significantly modified in 
1980 for purposes of obtaining State primacy. The provisions of this 
section are part of Pennsylvania's approved program and PADEP 
interprets section 13 as not being affected by the three-year limit 
described in section 5.2(e)(2).
    PADEP's Proposed Resolution: In summary, PADEP asserts that the 
three-year limit described in section 5.2(e)(2) and 25 Pa. Code 
89.152(a)(2) does not render Pennsylvania's water supply replacement 
provisions any less effective than those of the Federal program. PADEP 
requests that OSM withdraw the required amendments under 30 CFR 
938.16(mmmm) and 938.16(xxxxx) relating to the removal of the three-
year liability limit.
    PADEP also proposes to amend the definition of ``underground mining 
activities'' to clarify that the term

[[Page 55111]]

includes management of the post closure mine pool. The definition, 
which appears in 25 Pa. Code 86.1 and 25 Pa. Code 89.5, is proposed to 
be amended as follows:

    Underground mining activities includes the following:
    (i) Surface operations incident to underground extraction of 
coal or in situ processing, such as construction, use, maintenance 
and reclamation of roads, aboveground repair areas, storage areas, 
processing areas, shipping areas, areas upon which are sited support 
facilities including hoist and ventilating ducts, areas used for the 
disposal and storage of waste, and areas on which materials incident 
to underground mining operations are placed.
    (ii) Underground operations such as underground construction, 
operation, and reclamation of shafts, adits, support facilities 
located underground, in situ processing, and underground mining, 
hauling, storage and blasting.
    (iii) Operation of a mine including preparatory work in 
connection with the opening and reopening of a mine, backfilling, 
sealing, and other closing procedures, post closure mine pool 
maintenance and any other work done on land or water in connection 
with a mine.

* * * * *
    Regulation at 30 CFR 938.16(nnnn), (oooo), (qqqq), (rrrr). 
Amendment Required by December 27, 2001, Federal Register Notice: OSM 
required Pennsylvania to remove provisions in sections 5.2(g) and (h) 
and 5.3 of BMSLCA which allow an operator to provide compensation in 
lieu of restoring or replacing an affected water supply.
    Discussion: Sections 5.2(g) and (h) and section 5.3 of the BMSLCA 
include provisions that allow water supply cases to be resolved through 
compensation rather than replacement of the affected water supply. They 
allow an operator to seek relief from liability if restoration or 
replacement cannot be achieved within three years of the date of 
impact. Compensation under sections 5.2(g) and (h) may take one of 
three forms: (1) An amount agreed to by the operator and landowner, (2) 
an amount representing the reduction in fair market value caused by the 
water loss, or (3) the purchase of the property at its fair market 
value prior to impact. Section 5.3 provides similar forms of 
compensation but allows the landowner or water user to take the 
initiative in seeking financial relief. Section 5.3 also allows the 
operator and landowner to agree on compensation in lieu of replacement 
before or after impacts occur.
    In the December 27, 2001, final rule, OSM disapproved these 
provisions of the BMSLCA as well as corresponding regulations in 
Chapter 89. OSM asserted that neither the EPAct nor the Federal 
regulations allowed compensation to suffice in lieu of water supply 
replacement. Moreover, OSM promulgated regulations requiring that in 
every case within the scope of EPAct, the mine operator had to provide 
an adequate replacement water supply or, if the landowner waived 
replacement, demonstrate that an adequate water supply could be 
developed. OSM stated that Federal law requires that a property has to 
be provided with an equivalent water supply or the capacity to develop 
a suitable alternate water supply.
    During the joint meeting process, PADEP presented information 
showing how situations could develop in which an operator was unable to 
provide a water supply meeting all of the criteria under 25 Pa. Code 
89.145a(f) (relating to adequacy of permanently restored or replacement 
water supplies). PADEP stated that although it closely reviews 
hydrologic data in permit applications to identify situations where 
replacement may be difficult or impractical, there are some situations 
that may be impossible to predict. PADEP further stated that 
replacement problems, when they arise, normally occur as a result of a 
combination of factors and conditions that are not evident at the time 
of permit application. PADEP gave an example of a small residential 
property with a shallow well, no surface springs, no public water 
service, and an undetected pollution problem affecting aquifers below 
the well. It may be assumed that PADEP approved the operator's plan to 
replace the affected water supply based on the proven success of this 
approach in the local area and that neither the PADEP nor the operator 
had knowledge of the localized pollution problem affecting the deeper 
aquifers beneath the property. In this case, the undetected pollution 
problem and lack of alternate water sources would combine to prevent 
the development of an adequate replacement water supply if the shallow 
well were affected.
    PADEP states that it rarely encounters cases where water supplies 
cannot be replaced. PADEP contends that there are, however, situations 
like the one in the previous example where various factors could 
interact to prevent the development of an adequate replacement water 
supply. Although public water offers a suitable remedy for many 
problems, it is not available in all locations, particularly rural and 
remote areas where underground mining operations tend to be located. 
PADEP asserts that it always evaluates the possibility of extending 
public water service into areas where affected water supplies cannot be 
replaced using wells and springs. These determinations include 
considerations of service areas, water system capacity, distribution 
design factors and availability of right-of-way for line installation. 
In the final determination, PADEP proposes that it only considers 
replacement to be unachievable when the affected property cannot be 
provided with a well or spring, meeting the criteria in 25 Pa. Code 
89.145a(f), or connected to a public water line for reasons of system 
limitations.
    During the joint meeting process, OSM acknowledged that rare cases 
may exist where the operator cannot develop an adequate replacement 
water supply. OSM indicated that upon encountering a case where an 
EPAct water supply cannot be replaced, it would regard the loss of 
supply as material damage to the dwelling or noncommercial building 
served by the water supply. Under these circumstances, OSM would 
require the operator to compensate the landowner for the reduction in 
fair market value of the structure according to 30 CFR 817.121(c). OSM 
does not equate these instances to compensation in lieu of water supply 
replacement.
    In the joint meeting process, OSM recognized two conditions under 
which a water supply claim can result in compensation.
    Condition 1: The operator provides a written statement from the 
landowner indicating that the water supply was not needed for the land 
use in existence at the time of loss and is not needed to achieve the 
postmining land use, and demonstrates that a suitable alternative water 
source could feasibly be developed.
    Condition 2: The regulatory authority determines that an equivalent 
replacement water supply cannot be developed and the mine operator 
compensates the landowner for the reduction in fair market value of the 
property.
    Under the BMSLCA, PADEP has advised there are several situations 
that could lead to compensation in lieu of water supply replacement. 
The first situation is where the water supply can be replaced but the 
operator and landowner have entered into an agreement pursuant to 
section 5.3 waiving the provision of a replacement water supply. The 
second situation is where the water supply cannot be replaced and the 
operator and landowner have entered into an agreement pursuant to 
section 5.2(g) or 5.3 waiving the provision of a replacement water 
supply. The third situation is where the water supply cannot be 
replaced and the landowner

[[Page 55112]]

is unwilling to accept compensation in lieu of a replacement water 
supply. The fourth situation is where the water supply can be replaced 
but the operator only offers compensation as the means of settlement.
    PADEP contends that the first Pennsylvania scenario is similar to 
OSM's Condition 1. The landowner signs an agreement that expressly 
waives the provision of a replacement water source. This equates to 
``indicating that the water supply was not needed for the land use in 
existence at the time of loss and is not needed to achieve the 
postmining land use.'' The Federal condition also requires the operator 
to demonstrate ``that a suitable alternative water source could 
feasibly be developed.'' Under the Pennsylvania program, this 
demonstration is provided at the time of permit application in 
accordance with 25 Pa. Code 89.36(c) and is reviewed by PADEP technical 
staff prior to permit issuance. PADEP states that it does not issue a 
permit unless it determines that all potentially affected water 
supplies can be replaced by the methods proposed by the operator. No 
additional demonstration is required at the time of settlement. In this 
submission, PADEP proposes that the Pennsylvania program is essentially 
the same as the Federal program in regard to these types of situations.
    PADEP maintains that the second and third Pennsylvania scenarios 
must be evaluated in terms of OSM Condition 2. In these scenarios, 
PADEP must first determine that the operator cannot develop an adequate 
replacement water supply and subsequently determine that the landowner 
has been fairly compensated in accordance with section 5.2(g) or 
section 5.3(a)(5). Pennsylvania requirements for adequacy turn on a 
replacement water supply's capacity to meet the original water supply's 
premining and reasonably foreseeable uses, while Federal regulations 
require a replacement water supply to be equivalent to the premining 
water supply in terms of quality and quantity. Additional explanations 
of how Pennsylvania's standards for ``adequacy'' are no less effective 
than Federal standards for ``equivalency'' are provided in the preamble 
discussion at 66 FR 67012.
    PADEP asserts that determinations regarding the development of a 
replacement water supply are based on several factors, including the 
replacement methods described in the permit application, the operator's 
efforts in replacing the water supply, the means of replacing nearby 
water supplies, the hydrologic resources of the property, the 
availability of public water and the potential for extending public 
water to the property. If PADEP determines that the operator cannot 
develop a replacement water supply meeting the criteria in 25 Pa. Code 
89.145a(f), it assists the landowner in obtaining appropriate 
compensation under section 5.2(g) or 5.3(a)(5). In this submission, 
PADEP proposes that both of these situations will fall within the 
guidelines of OSM Condition 2.
    In this submission, PADEP proposes that the fourth Pennsylvania 
scenario does not fall within the scope of OSM Condition 1 or 2. The 
existing provisions of sections 5.2(g) and (h) limit PADEP's authority 
to require a replacement water supply when an operator decides to 
pursue a settlement involving compensation. If PADEP is to have 
authority to require replacement water supplies in situations where it 
determines that a replacement water supply meeting the standards in 25 
Pa. Code 89.145a(f) can be developed, PADEP asserts that OSM must 
supersede these provisions to the extent they would interfere with 
PADEP actions requiring replacement of EPAct water supplies.
    In this submission, PADEP proposes that the final aspect of 
Pennsylvania's program that must be evaluated is whether or not the 
compensation provided under Pennsylvania's program is equal to that 
provided under the Federal program (i.e., compensation equal to the 
reduction in fair market value of the structure). As noted earlier, 
section 5.2(g) provides for compensation equal to the reduction in fair 
market value of the property, which is at least equal to the amount 
required by the Federal program. Subsection (g) also provides an option 
to purchase the property at its fair market value prior to impact. 
Subsection (g) also allows compensation pursuant to other types of 
agreements made between the operator and landowner. Although section 
5.2 is silent regarding the amount of compensation required under these 
agreements, section 5.3 provides the landowner a second chance at 
securing appropriate compensation if the amount provided under a 
previous agreement is less than the reduction in fair market value of 
the property or purchase price of the property prior to impact. 
Pennsylvania maintains that these provisions act together to ensure 
that landowners have the opportunity to obtain compensation equal to or 
greater than the amount provided by the Federal program.
    As indicated in the foregoing discussion, PADEP is proposing that 
Pennsylvania's provisions relating to compensation in lieu of water 
supply replacement are no less effective than the Federal provisions in 
most respects. PADEP asserts that both Federal and State regulations 
allow compensation in cases where replacement is achievable but waived 
by the landowner and both sets of regulations recognize the existence 
of conditions where the loss of a water supply can result in 
compensation. As noted by Pennsylvania, its program does, however, 
include provisions limiting PADEP's authority to require replacement 
when an operator opts to pursue compensation without regard to the 
feasibility or practicality of replacing a water supply. PADEP argues 
that this inconsistency must be addressed through a partial 
supersession of various provisions of sections 5.2(g) and (h) to the 
extent that they would interfere with the replacement of EPAct water 
supplies and corresponding changes to 25 Pa. Code 89.152(a). With these 
changes, PADEP is proposing that Pennsylvania's provisions relating to 
the replacement of EPAct water supplies will be no less effective than 
those of the Federal regulations.
    PADEP's Proposed Resolution: PADEP proposed to address OSM's 
concerns through amendments to 25 Pa. Code 89.152. The section as 
proposed to be amended reads:

    89.152. Water supply replacement: special provisions.
    (a) In the case of an EPAct water supply, an operator may not be 
required to restore or replace the water supply if one of the 
following has occurred:
    (1) The Department has determined that a replacement water 
supply meeting the criteria in section 89.145a(f) (relating to water 
supply replacement: performance standards) cannot be developed and 
the operator has purchased the property for a sum equal to the 
property's fair market value immediately prior to the time the water 
supply was affected or has made a one-time payment equal to the 
difference between the property's fair market value determined 
immediately prior to the time the water supply was affected and the 
fair market value determined at the time payment is made.
    (2) The landowner and operator have entered into a valid 
voluntary agreement under section 5.3(a)(5) of The Bituminous Mine 
Subsidence and Land Conservation Act (52 P.S. 1406.5) which does not 
require restoration or replacement of the water supply and the 
Department has determined that an adequate replacement water supply 
could feasibly be developed.
    (3) The operator can demonstrate one of the following:
    (i) The contamination, diminution or interruption existed prior 
to the underground mining activities as determined by a premining 
survey, and the operator's underground mining activities did not

[[Page 55113]]

worsen the preexisting contamination, diminution or interruption.
    (ii) The contamination, diminution or interruption occurred more 
than three years after underground mining activities occurred.
    (iii) The contamination, diminution or interruption occurred as 
the result of some cause other than the underground mining 
activities.
    (b) In the case of a water supply other than an EPAct water 
supply, an operator will not be required to restore or replace a 
water supply if the operator can demonstrate one of the following:
    (1) The contamination, diminution or interruption existed prior 
to the underground mining activities as determined by a premining 
survey, and the operator's underground mining activities did not 
worsen the preexisting contamination, diminution or interruption.
    (2) The contamination, diminution or interruption is due to 
underground mining activities which occurred more than 3 years prior 
to the onset of water supply contamination, diminution or 
interruption.
    (3) The contamination, diminution or interruption occurred as 
the result of some cause other than the underground mining 
activities.
    (4) The claim for contamination, diminution or interruption of 
the water supply was made more than 2 years after the water supply 
was adversely affected by the underground mining activities.
    (5) That the operator has done one of the following:
    (i) Has purchased the property for a sum equal to the property's 
fair market value immediately prior to the time the water supply was 
affected or has made a one-time payment equal to the difference 
between the property's fair market value determined immediately 
prior to the time the water supply was affected and the fair market 
value determined at the time payment is made.
    (ii) The landowner and operator have entered into a valid 
voluntary agreement under section 5.3 of The Bituminous Mine 
Subsidence and Land Conservation Act (52 P. S. 1406.5c) which does 
not require restoration or replacement of the water supply or 
authorizes a lesser amount of compensation to the landowner than 
provided by section 5.3(a)(5) of The Bituminous Mine Subsidence and 
Land Conservation Act.
    (c) This section does not apply to underground mining activities 
which are governed by Chapter 87 (relating to surface mining of 
coal).

* * * * *
    In order for this change to become effective, PADEP informed OSM 
that the language in sections 5.2(g) and (h) of BMSLCA must be 
superseded. Specifically, PADEP indicated section 5.2(g) must be 
superseded to the extent that it would remove an operator's liability 
to restore or replace a water supply covered under section 720 of 
SMCRA. The proposal to supersede section 5.2(g) to this extent appears 
in a separate rulemaking in this Federal Register issue. Section 5.2(g) 
provides that:

    (g) If an affected water supply is not restored or reestablished 
or a permanent alternate source is not provided within three years, 
the mine operator may be relieved of further responsibility by 
entering into a written agreement providing compensation acceptable 
to the landowner. If no agreement is reached, the mine operator, at 
the option of the landowner shall:
    (1) Purchase the property for a sum equal to its fair market 
value immediately prior to the time the water supply was affected; 
or
    (2) Make a one-time payment equal to the difference between the 
property's fair market value immediately prior to the time the water 
supply was affected and at the time payment is made; whereupon the 
mine operator shall be relieved of further obligation regarding 
contamination, diminution or interruption of an affected water 
supply under this act. Any measures taken under sections 5.1 and 5.3 
and this section to relieve a mine operator of further obligation 
regarding contamination, diminution or interruption of an affected 
water supply shall not be deemed to bar a subsequent purchaser of 
the land on which the affected water supply was located or any water 
user on such land from invoking rights under this section for 
contamination, diminution or interruption of a water supply 
resulting from subsequent mining activity other than that 
contemplated by the mine plan in effect at the time the original 
supply was affected.

    PADEP also informed OSM that it must also supersede section 5.2(h) 
of BMSLCA to the extent that it would bar PADEP from requiring the 
restoration or replacement of a water supply covered under section 720 
of SMCRA. OSM's proposal to supersede this section appears in a 
separate rulemaking in this Federal Register issue. Section 5.2(h) 
provides that:

    (h) Prior to entering into an agreement with the mine operator 
pursuant to subsection (g), the landowner may submit a written 
request to the department asking that the department review the 
operator's finding that an affected water supply cannot reasonably 
be restored or that a permanent alternate source, as described in 
subsection (i), cannot reasonably be provided. The department shall 
provide its opinion to the landowner within sixty days of receiving 
the landowner's request. The department's opinion shall be advisory 
only, including for purposes of assisting the landowner in selecting 
the optional compensation authorized under subsection (g). The 
department's opinion shall not prevent the landowner from entering 
into an agreement with the mine operator pursuant to subsection (g), 
and such opinion shall not serve as the basis for any action by the 
department against the mine operator or create any cause of action 
in a third party, provided the operator otherwise complies with 
subsection (g).

    Regulation at 30 CFR 938.16(pppp). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
the phrase, ``and of reasonable cost'' from subsection 5.2(i) of the 
BMSLCA. This section provides that a permanent alternate source 
includes any well, spring, municipal water supply system or other 
supply approved by PADEP which is adequate in quantity, quality and of 
reasonable cost to serve the premining uses of the affected water 
supply.
    Discussion: Subsection 5.2(i) requires a permanent alternate water 
source to be adequate in quantity, quality and of reasonable cost to 
serve the premining uses of the affected water supply. In the December 
27, 2001, rule, OSM stated the following two concerns regarding this 
provision: (1) The ``reasonable cost'' criterion could be interpreted 
to limit an operator's obligation to replace an affected water supply 
based on an operator's assertion that the replacement costs would be 
unreasonable. The Federal regulations require replacement without 
regard to cost; and (2) the use of the term ``reasonable costs'' 
implies that the landowner or water user could incur additional costs 
associated with the operation and maintenance of the replacement water 
supply. Federal regulations require the operator to pay operation and 
maintenance costs that exceed customary and reasonable costs associated 
with the premining water supply.
    Regarding the first concern, OSM's December 27, 2001, final rule 
viewed the ``reasonable cost'' criterion as potentially setting a limit 
on the liability of an operator. OSM was concerned that the criterion 
could be applied to relieve an operator of liability if the cost of 
replacing an affected water supply is unreasonable. OSM noted that 
Federal regulations require the replacement of affected water supplies 
without regard to the cost of replacement.
    In response to OSM's concern, PADEP asserts that the reasonable 
cost criterion in section 5.2(i) refers to a right of the property 
owner to a restored or replacement water supply that can be operated 
and maintained at a reasonable cost. It is not applied as a basis for 
relieving an operator of the liability to restore or replace an 
affected water supply.
    PADEP noted that its position is codified in 25 Pa. Code 
89.145a(f), which establishes criteria for determining the adequacy of 
replacement water supplies. Subsection (f) includes specific criteria 
relating to the quantity, quality, reliability, maintenance, control 
and operation costs of replacement water supplies. PADEP maintains that 
these criteria are clearly intended to ensure the right of a

[[Page 55114]]

landowner or water user to an adequate replacement water supply. 
Moreover, PADEP notes that 25 Pa. Code 89.152, which sets forth 
conditions for relief of liability, does not mention cost as a relevant 
factor.
    In this submission, PADEP asserts that the reasonable cost 
criterion in section 5.2(i) does not interfere with the replacement of 
affected water supplies and does not make Pennsylvania's water supply 
replacement provisions less effective than Federal counterpart 
provisions.
    Regarding the second concern, OSM indicated that the ``reasonable 
cost'' criterion could result in landowners or water users incurring 
operation and maintenance costs in excess of those allowed under the 
Federal regulations. OSM noted that the Federal definition of the term 
``replacement of water supply'' indicates that replacement includes 
payment of operation and maintenance cost in excess of customary and 
reasonable delivery costs of premining water supplies. OSM raised 
similar concerns under 30 CFR 938.16(ddddd) and (uuuuu) in regard to 
Pennsylvania regulations that relieve operators of the liability to 
compensate for de minimis cost increases.
    In this submission, PADEP is proposing amendments to 25 Pa. Code 
89.145a(f) to specifically address the operation and maintenance costs 
of EPAct water supplies. The amendments require that, in the case of an 
EPAct water supply, the restored or replacement water supply shall cost 
no more to operate and maintain than the previous water supply. The 
amendments further provide that any increased costs associated with the 
operation and maintenance of an EPACT water supply are the 
responsibility of the mine operator. The amendments also allow an 
operator to satisfy its responsibility for increased costs by 
compensating the landowner or water user by a one-time payment in an 
amount which covers the present worth of the increased annual 
operations and maintenance cost for a period agreed to by the operator 
and the landowner or water user. The provisions of proposed paragraph 
(5)(i) mirror the Federal requirement in regard to the operation and 
maintenance costs of EPAct water supplies.
    The proposed amendments to 25 Pa. Code 89.145a(f) as submitted 
retain the allowance of a de minimis cost increase for replacement 
water supplies that are outside the scope of the Federal regulations. 
The retention of this provision preserves Pennsylvania law to the 
maximum extent possible.
    PADEP's Proposed Resolution: PADEP recommends that OSM accept its 
interpretation that the provision regarding ``reasonable cost'' in 
section 5.2(i) of the BMSLCA, as applied through the regulations and 
through the proposed changes to 25 Pa. Code 89.145a(f), does not render 
the Pennsylvania water supply replacement requirements less effective 
than the Federal counterpart requirements. Proposed amendments to 25 
Pa. Code 89.145a(f) are shown in the response to 30 CFR 938.16(uuuuu).
    Regulation at 30 CFR 938.16(ssss). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to make it 
clear that section 5.3(c) of the BMSLCA, relating to other remedies 
under State law, cannot negate or provide less protection than EPAct.
    Discussion: Section 5.3(c) of the BMSLCA provides that nothing in 
the act shall prevent a landowner who claims water supply problems from 
seeking any other remedy that may be provided in law or equity. It goes 
on to indicate that in any proceedings in pursuit of a remedy other 
than the BMSLCA, the provisions of the Act shall not apply and the 
operator may assert in defense any rights or waivers from deeds, leases 
or agreements pertaining to mining rights or coal ownership.
    In the December 27, 2001, final rule, OSM interpreted this section 
to mean that if a landowner sought out legal protections apart from the 
BMSLCA, then he would lose the protection of the BMSLCA. Section 5.3(c) 
was not approved to the extent that any State law negates or provides 
less protection than EPAct.
    In this submission, PADEP has advised OSM that it interprets 
section 5.3(c) to allow a landowner or water user who claims 
contamination, diminution or interruption of a water supply to seek any 
other remedy that may be provided under law or in equity. PADEP further 
assures OSM that the landowner has full rights under the BMSLCA while 
seeking remedies under other laws and that this interpretation does not 
diminish the protections provided by EPAct.
    PADEP's Proposed Resolution: PADEP proposes that section 5.3(c) of 
the BMSLCA remain unchanged because it has satisfied the requirement in 
30 CFR 938.16(ssss).
    Regulation at 30 CFR 938.16(tttt). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
section 5.4 of the BMSLCA to require prompt repairs or compensation in 
cases involving damage to EPAct structures (i.e., noncommercial 
buildings, dwellings and structures related thereto).
    Discussion: In the December 27, 2001, final rule, OSM found that 
SMCRA at section 720(a)(1) and the Federal regulations at 30 CFR 
817.121(c)(2) require the prompt repair of structural damage or the 
payment of compensation to owners of non-commercial buildings or 
occupied residential dwellings. OSM found that while Pennsylvania did 
require the repair of, or compensation for damage to, these structures, 
there was no standard requiring that such repairs or compensation be 
performed promptly. OSM required Pennsylvania to amend section 5.4 of 
the BMSLCA (52 P.S. 1406.5d) to require prompt repair and compensation 
for structures protected under section 720(a)(1) of SMCRA and 30 CFR 
817.121(c)(2). OSM made a similar requirement at 30 CFR 938.16(kkkkk) 
with regard to the implementing regulations at 25 Pa. Code 
89.142a(f)(1).
    In this submission, PADEP proposes to address OSM's concern by 
amending 25 Pa. Code 89.142a(f)(1) to incorporate a requirement for 
prompt repair or compensation with the understanding that prompt means 
as soon as practicable. PADEP maintains that this will make 
Pennsylvania's requirements for repair and compensation of structure 
damage no less effective than Federal counterpart requirements in 
regard to timeliness of actions.
    Because the BMSLCA is silent on the ``prompt'' standard, PADEP 
maintains that the aforementioned regulation change will be sufficient 
to meet the Federal ``prompt'' standard. PADEP does not believe that 
existing statutory language is conflicting with or diminishing the 
authority of the revised regulatory standard. Accordingly, PADEP 
asserts that there is no need to amend section 5.4 of the BMSLCA.
    PADEP's Proposed Resolution: PADEP proposes to amend 25 Pa. Code 
89.142a(f)(1). The amended language reads.

    89.142a. Subsidence control: performance standards.
* * * * *
    (f) Repair of damage to structures.
    (1) Repair or compensation for damage to certain structures. 
Whenever underground mining operations conducted on or after August 
21, 1994, cause damage to any of the structures listed in 
subparagraphs (i)--(v), the operator responsible for extracting the 
coal shall promptly and fully rehabilitate, restore, replace or 
compensate the owner for material damage to the structures resulting 
from the subsidence unless the operator demonstrates to the 
Department's satisfaction that one of the provisions of 25 Pa. Code 
89.144a (relating to subsidence control: relief

[[Page 55115]]

from responsibility) relieves the operator of responsibility.
* * * * *
    In this submission, PADEP proposes that section 5.4 of the BMSLCA 
remain unchanged, as it has satisfied the requirement in 30 CFR 
938.16(tttt).
    Regulation at 30 CFR 938.16(uuuu). Amendment Required by December 
27, 2001 Federal Register Notice: OSM directed Pennsylvania to amend 
section 5.4(a)(3) of the BMSLCA to remove the phrase, ``in place on the 
effective date of this section or on the date of first publication of 
the application for a Mine Activity Permit or a five-year renewal 
thereof for the operations in question and within the boundary of the 
entire mine as depicted in said application.''
    Discussion: Section 5.4(a)(3) of the BMSLCA refers to repair or 
compensation for damage to improvements that are related to dwellings. 
In describing the scope of these requirements, subsection (a)(3) limits 
repair and compensation liability to improvements that are ``in place 
on the effective date of this section or on the date of first 
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the 
boundary of the entire mine as depicted in said application.'' In the 
December 27, 2001, final rule, OSM found that this qualification could 
potentially exclude improvements covered by Federal repair and 
compensation requirements. The Federal regulations cover all 
improvements that fall within the scope of the term ``occupied 
residential dwelling and structures related thereto'' as long as they 
are in place at the time of mining.
    In this submission, PADEP proposes to address OSM's concern by 
amending 25 Pa. Code 89.142a(f)(1)(iii) to remove the special 
conditions that govern the coverage of improvements related to 
dwellings used for human habitation. With the removal of these special 
qualifications, PADEP asserts that paragraph (f)(iii) will provide 
repair or compensation remedies for all improvements that are related 
to dwellings used for human habitation and in place at the time of 
mining. PADEP maintains that this will make the scope of Pennsylvania's 
repair and compensation provisions as inclusive as the Federal 
provisions, which address all ``occupied residential dwellings and 
structures related thereto.''
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 89.142a(f)(1)(iii) as follows:

    89.142a. Subsidence control: performance standards.
* * * * *
    (f) Repair of damage to structures.
    (1) Repair or compensation for damage to certain structures. 
Whenever underground mining operations conducted on or after August 
21, 1994, cause damage to any of the structures listed in 
subparagraphs (i)-(v), the operator responsible for extracting the 
coal shall promptly and fully rehabilitate, restore, replace or 
compensate the owner for material damage to the structures resulting 
from the subsidence unless the operator demonstrates to the 
Department's satisfaction that one of the provisions of 25 Pa. Code 
89.144a (relating to subsidence control: relief from responsibility) 
relieves the operator of responsibility.
* * * * *
    (iii) Dwellings which are used for human habitation and 
permanently affixed appurtenant structures or improvements. In the 
context of this paragraph, the phrase permanently affixed 
appurtenant structures and improvements includes, but is not limited 
to, structures adjunct to or used in conjunction with dwellings, 
such as garages; storage sheds and barns; greenhouses and related 
buildings; customer-owned utilities and cables; fences and other 
enclosures; retaining walls; paved or improved patios; walks and 
driveways; septic sewage treatment facilities; inground swimming 
pools; and lot drainage and lawn and garden irrigation systems.
* * * * *
    PADEP contends that in order for this change to become effective, 
OSM must supersede the corresponding language in section 5.4(a)(3) of 
the BMSLCA which serves as the basis for the existing restrictions. The 
proposal to supersede this section appears in a separate rulemaking in 
this Federal Register issue.
    Regulation at 30 CFR 938.16(vvvv). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
section 5.4(c) of the BMSLCA, which waives an operator's liability for 
damage repair and compensation in cases where landowners deny access 
for premining or postmining surveys.
    OSM made a similar requirement in 30 CFR 938.16(ppppp) with regard 
to 25 Pa. Code 89.144a (relating to subsidence control: release of 
liability).
    Discussion: Section 5.4(c) provides that:

    A mine operator shall not be liable to repair or compensate for 
subsidence damage if the mine operator, upon request, is denied 
access to the property upon which the building is located to conduct 
premining and postmining surveys of the building and the surrounding 
property and thereafter serves notice upon the landowner by 
certified mail or personal service, which notice identifies the 
rights established by section 5.5 and 5.6 and this section, the mine 
operator was denied access and the landowner failed to provide or 
authorize access within ten days after receipt thereof.

    In the December 27, 2001, final rule, OSM stated that section 
5.4(c) provides a release of liability that is not provided in the 
Federal regulations. OSM found that this would prevent the owner of an 
EPAct structure from receiving repairs or compensation required by 30 
CFR 817.121(c)(4)(iii). Accordingly, OSM directed PADEP to remove 
subsection (c) to eliminate this relief as it pertains to EPAct 
structures.
    In this submission, PADEP stated that it regards premining survey 
data as important to determining where liability should begin and end. 
PADEP maintains that a landowner's denial of access would deprive the 
operator and the regulatory agency of the information needed to 
accurately determine the extent of subsidence damage. PADEP asserts 
that section 5.4(c) serves as an incentive for the landowner to provide 
access for the performance of surveys. PADEP regards this provision as 
merely conditioning a landowner's rights in a reasonable manner.
    PADEP also notes that it is unaware of any case where repair or 
compensation was refused on the basis of section 5.4(c), but 
acknowledged that it could not ensure that cases would not arise in the 
future.
    To address OSM's concerns, PADEP proposes in this submission to 
amend 25 Pa. Code 89.144a to provide that the release of liability may 
not occur if the affected structure is an EPAct structure and the 
damage can be shown by a preponderance of evidence to be the result of 
underground mining operations. It is PADEP's position that this 
approach preserves some incentive for landowners to allow access for 
premining and postmining surveys. PADEP maintains that it also serves 
to ensure that damages to EPAct structures will be repaired if PADEP or 
the landowner can show through a reasonable amount of evidence that the 
damage resulted from underground mining operations. Finally, it retains 
the release of liability in cases involving non-EPAct structures, 
thereby preserving, to the extent possible, the provisions of existing 
Pennsylvania law governing structures not covered by the Federal law.
    PADEP asserts that with these changes, Pennsylvania's program will 
be no less effective than the Federal program in regard to repair or 
compensation for damage to EPAct structures. The release provided by 
revised 25 Pa. Code 89.144a will only apply in cases involving EPAct 
structures where neither PADEP nor the

[[Page 55116]]

landowner can prove the damage resulted from underground mining 
operations, and in cases involving non-EPAct structures.
    PADEP further argues that it can only pursue the proposed 
amendments to 25 Pa. Code 89.144a if OSM supersedes section 5.4(c) of 
BMSLCA to the extent that it applies to EPAct structures.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
address this issue by revising parts of 25 Pa. Code 89.144a. The 
revised subsections now read:

    89.144a. Subsidence control: relief from responsibility.
    (a) Except as provided in (b), the operator will not be required 
to repair a structure or compensate a structure owner for damage to 
structures identified in 25 Pa. Code 89.142a(f)(1) (relating to 
subsidence control: performance standards) if the operator 
demonstrates to the Department's satisfaction one or more of the 
following apply:
    (1) The landowner denied the operator access to the property 
upon which the structure is located to conduct a premining survey or 
a postmining survey of the structure and surrounding property, and 
thereafter the operator served notice upon the landowner by 
certified mail or personal service. The operator shall demonstrate 
the following:
* * * * *
    (b) The relief in paragraph (a)(1) shall not apply in the case 
of an EPAct structure if the landowner or the Department can show, 
by a preponderance of evidence, that the damage resulted from the 
operator's underground mining operations.

    PADEP asserts that in order for this change to become effective, 
OSM must supersede section 5.4(c) of the BMSLCA to the extent that it 
would relieve an operator of the liability to repair or compensate for 
damage to an EPAct structure. The proposal to supersede this section 
appears in a separate rulemaking in this Federal Register issue.
    Regulation at 30 CFR 938.16(wwww). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
section 5.5(a) of the BMSLCA to make it clear that operators are 
responsible for repair or compensation in all cases where EPAct 
structures are damaged by subsidence from ``underground mining 
operations.''
    OSM made a similar requirement at 30 CFR 938.16(bbbbbb) with regard 
to the implementing regulations at 25 Pa. Code 89.143a(a).
    Discussion: In the December 27, 2001, final rule, OSM observed that 
the duty to repair or compensate in section 5.5(a) is predicated on the 
condition that damage resulted from ``underground mining.'' OSM noted 
that section 720(a) of SMCRA applies to all damages resulting from 
``underground coal mining operations''--a broad term, which OSM defines 
to include underground construction, operation and reclamation of 
shafts, adits, underground support facilities, in situ processing, and 
underground mining, hauling, storage and blasting. OSM further observed 
that Pennsylvania defines the term ``underground mining'' in its 
regulations to include only the extraction of coal. OSM interpreted the 
language of section 5.5(a) in combination with Pennsylvania's 
regulatory definition of the term ``underground mining'' as potentially 
limiting the conditions under which an operator would be liable to 
repair or compensate for damage to EPACT structures.
    In this submission, PADEP proposes to address OSM's concern by 
revising 25 Pa. Code 89.143a(a) to incorporate the term ``underground 
mining operations,'' a term that is defined in the regulations at 25 
Pa. Code 89.5, in a manner consistent with the term ``underground 
mining operations'' as used in SMCRA. PADEP notes that the terms 
``underground mining'' and ``underground mining operations'' are not 
defined in BMSLCA and are not used in a manner that construes any 
distinct differences in meaning. As a result, PADEP is proposing that 
this issue can be effectively addressed by simply changing the 
regulation.
    PADEP asserts that the proposed amendment to Sec.  89.143a.(a) will 
make Pennsylvania's program no less effective than the Federal program 
in regard to the types of activities that trigger liability for damage 
to EPACT structures. PADEP further asserts that it is unnecessary to 
make any changes to section 5.5(a) of the BMSLCA.
    In this submission, PADEP is asserting that the proposed amendment 
to 25 Pa. Code 89.143a(a) will make Pennsylvania's program no less 
effective than the Federal program in regard to the types of activities 
that trigger liability for damage to EPAct structures. PADEP further 
asserts that it is unnecessary to make any changes to section 5.5(a) of 
the BMSLCA.
    Proposed Resolution: In this submission, Pennsylvania proposes to 
revise 25 Pa. Code 89.143a(a) and (d) by adding the word 
``operations.'' The revised subsections read as follows:

(Note: The other changes to this section are discussed elsewhere in 
this proposed rule.)
    89.143a. Subsidence control: procedure for resolution of 
subsidence damage claims.
    (a) The owner of a structure enumerated in section 89.142a(f)(1) 
(relating to subsidence control: performance standards) who believes 
that underground mining operations caused mine subsidence resulting 
in damage to the structure and who wishes to secure repair of the 
structure or compensation for the damage shall provide the operator 
responsible for the underground mining with notification of the 
damage to the structure.
    (b) If the operator agrees that mine subsidence damaged the 
structure, the operator shall fully repair the damage or compensate 
the owner for the damage in accordance with either 25 Pa. Code 
89.142a(f) or a voluntary agreement between the parties authorized 
by section 5.6 of The Bituminous Mine Subsidence and Land 
Conservation Act (52 P. S. Section 1406.5f).
    (c) If the parties are unable to agree as to the cause of the 
damage or the reasonable cost of repair or compensation for the 
structure, the owner of the structure may file a claim in writing 
with the Department. The owner of a structure that is not an EPAct 
structure must file the claim within two years of the date the 
structure was damaged.
    (d) Upon receipt of the claim, the Department will send a copy 
of the claim to the operator and conduct an investigation in 
accordance with the following procedure:
    (1) Within 30 days of receipt of the claim, the Department will 
conduct an investigation to determine whether underground mining 
operations caused the subsidence damage to the structure and provide 
the results of its investigation to the property owner and mine 
operator within 10 days of completing the investigation.
    (2) Within 60 days of completion of the investigation, the 
Department will determine, and set forth in writing, whether the 
damage is attributable to subsidence caused by the operator's 
underground mining operations and, if so, the reasonable cost of 
repairing or replacing the damaged structure.
    (3) If the Department finds that the operator's underground 
mining operations caused the damage to the structure, the Department 
will either issue a written order directing the operator to promptly 
compensate the structure owner or issue an order directing the 
operator to promptly repair the damaged structure. The Department 
may extend the time for compliance with the order if the Department 
finds that further damage may occur to the same structure as a 
result of additional subsidence.

    Regulation at 30 CFR 938.16(xxxx). Amendment Required by December 
27, 2001 Federal Register Notice: OSM directed Pennsylvania to remove 
section 5.5(b) of the BMSLCA which describes procedures for the 
resolution of structure damage claims. Section 5.5(b) provides a six-
month negotiation period prior to intervention of the regulatory 
agency. It also establishes a two-year period for filing subsidence 
damage claims. OSM made a similar requirement at 30 CFR 938.16(nnnnn) 
with regard to the implementing regulations at 25 Pa. Code 89.143a(c).
    Discussion: Section 5.5(b) provides that:
* * * * *

[[Page 55117]]

    (b) If the parties are unable to agree within six months of the 
date of notice as to the cause of the damage or the reasonable cost 
of repair or compensation, the owner of the building may file a 
claim in writing with the Department of Environmental Resources, a 
copy of which shall be sent to the operator. All claims under this 
subsection shall be filed within two years of the date damage to the 
building occurred.
* * * * *
    In the December 27, 2001, final rule, OSM had two concerns 
regarding this section of the BMSLCA. OSM was concerned that the 
provision of a six-month negotiation period could delay PADEP 
enforcement action and result in repair or compensation that is not 
``prompt.'' OSM was also concerned that the requirement to file a claim 
within two years of the date of damage could function as a statute of 
limitations depriving landowners who missed the filing deadline of the 
right to repair or compensation. OSM stated that EPAct requires 
operators to promptly provide repair or compensation and does not 
require landowners to file damage claims in any specified time frame.
    Regarding the six-month negotiation period, PADEP asserts in this 
submission that it has the authority to take enforcement action, when 
appropriate, prior to the expiration of the six-month negotiation 
period. According to PADEP, section 9 of the BMSLCA gives PADEP broad 
authority to issue orders ``as are necessary to aid in the enforcement 
of the provisions of [the BMSLCA].'' PADEP states that in most cases, 
enforcement actions prior to the expiration of the six-month period 
will focus on requirements for emergency temporary repair measures 
because subsidence will not be complete.
    PADEP notes in this submission that, under Pennsylvania's program, 
all concerned parties receive timely notification of the occurrence of 
structure damage. The PADEP surface subsidence agents will learn of the 
damage through field observations and communications with the property 
owner. The operator will learn of the damage through reports from its 
field agent, the landowner or the PADEP agent. Section 25 Pa. Code 
89.142a(k) also requires the operator to file a report of the claim to 
PADEP within 10 days of being advised of a damage incident. PADEP 
maintains that this system of overlapping notifications serves to 
ensure that the landowner, operator and PADEP receive timely 
information regarding the occurrence and nature of damage.
    In regard to OSM's second concern about the obligation to file a 
claim within two years, PADEP asserts that it does not interpret the 
two-year claim filing period in section 5.5(b) as a statute of 
limitations. However, PADEP acknowledges it cannot ensure that, in the 
event of an appeal, a court would not interpret this provision as a 
statute of limitations. Consequently, PADEP agrees that OSM must 
supersede this provision to the extent it is inconsistent with the 
Federal regulations. PADEP asserts that OSM should only supersede the 
statute of limitation as it relates to EPACT structures. A limited 
supersession will serve to satisfy the Federal requirement in 30 CFR 
938.16(xxxx), while preserving Pennsylvania law to the maximum extent 
possible. The proposal to supersede section 5.5(b) appears in a 
separate rulemaking in this Federal Register issue.
    In this submission, PADEP proposes to address OSM's concerns 
through amendments to 25 Pa. Code 89.143a(c). Under the proposal, 
language referring to the six-month negotiation period will be deleted. 
In addition, the regulation will be restructured so that the 
requirement to file a claim within two years of damage does not apply 
in cases involving EPAct structures. These changes will ensure that 
Pennsylvania provisions relating to the filing of structure damage 
claims are not inconsistent with Federal requirements.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 89.143a(c). The proposed language reads:

    89.143a. Subsidence control: procedure for resolution of 
subsidence damage claims.
* * * * *
    (c) If the parties are unable to agree as to the cause of the 
damage or the reasonable cost of repair or compensation for the 
structure, the owner of the structure may file a claim in writing 
with the Department. The owner of a structure that is not an EPAct 
structure must file the claim within two years of the date the 
structure was damaged.
* * * * *
    Regulation at 30 CFR 938.16(yyyy). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
section 5.5(c) to remove the following phrase relating to timeframes 
for enforcement orders, `` * * * within six months or a longer period 
if the department finds that the occurrence of subsidence or subsequent 
damage may occur to the same building as a result of mining.'' (OSM 
made a similar requirement in 30 CFR 938.16(ooooo) with regard to the 
implementing regulations at 25 Pa. Code 89.143a(d)).
    OSM further required Pennsylvania to ensure that written damage 
determinations made by PADEP will take into account subsidence due to 
``underground coal mining operations'' as required by SMCRA. OSM made a 
similar requirement at 30 CFR 938.16(bbbbbb) with regard to the 
implementing regulations at 25 Pa. Code 89.143a(d)(1)-(3).
    Finally, OSM required Pennsylvania to insure the timeframes for 
investigation of claims of subsidence damage are consistent with 
Federal procedures for response to citizen complaints.
    Discussion: Regarding the time frames in enforcement orders, 
section 5.5(c) of BMSLCA provides that PADEP shall make an 
investigation of a damage claim within 30 days following receipt of the 
claim. Within 60 days following the investigation, PADEP shall 
determine whether subsidence caused the damage and the reasonable cost 
of repairing or replacing the damaged structure. PADEP must issue a 
written order directing the operator to compensate or cause repairs to 
be made within six months. The six months can be extended if PADEP 
finds that subsidence may continue or subsequent damage may occur to 
the same building as a result of mining.
    In the December 27, 2001, final rule, OSM was concerned that the 
reference to the six-month timeframe could be construed as a basis for 
incorporating six-month compliance periods in all PADEP orders. OSM 
stated that this could interfere with the requirement to promptly 
repair or compensate in situations where resolutions could be 
practically achieved in less than six months.
    In response to OSM's concern, PADEP asserts in this submission, 
that the specified time period for compliance is ``within six months'' 
and not ``six months,'' per se. It is PADEP's interpretation that this 
language does not prohibit PADEP from writing orders that require 
repair or compensation in less than six months. To affirm this 
interpretation, PADEP proposes to amend 25 Pa. Code 89.143a(d)(3) to 
remove the reference to the six-month period and add provisions 
relating to the prompt performance of actions required by enforcement 
orders. PADEP can extend the time for repair or compensation when it 
finds that subsidence may continue or subsequent damage may occur to 
the same building as a result of mining.
    PADEP proposes that these changes will make Pennsylvania's 
enforcement requirements no less effective than those required under 
the Federal program. In addition, PADEP maintains that these changes 
can be implemented

[[Page 55118]]

without amending the statutory language in section 5.5(c).
    Regarding the issue relating to underground mining operations, OSM 
stated that section 5.5(c) conditions the issuance of enforcement 
orders upon a finding that damage was due to ``underground coal 
mining.'' OSM further determined that the Federal regulations require 
repair or compensation for all damages caused by ``underground mining 
operations''--a term that is more expansive than ``underground coal 
mining.'' On this basis, OSM found that section 5.5(c) might limit 
PADEP's authority to write enforcement orders for repair or 
compensation that would be required under the Federal program.
    In this submission, PADEP proposes to address OSM's concern by 
amending 25 Pa. Code 89.143a(d)(1)-(3) to replace the term 
``underground mining'' with ``underground mining operations.'' PADEP 
contends that this will make Pennsylvania's repair and compensation 
requirements no less effective than Federal requirements in regard to 
the type of mining activities that trigger liability.
    PADEP further asserts that there is no need to amend the language 
in section 5.5(c) to accomplish this change. The term ``underground 
coal mining'' is not defined in BMSLCA and according to PADEP, there is 
no consistent usage of the terms ``mining,'' ``underground mining'' or 
``underground mining operations'' that would suggest any specific 
differences in the meaning of these terms.
    Regarding the issue of citizen complaint time frames, OSM also 
determined that the investigation time frames in section 5.5(c) do not 
require PADEP to inform the claimant of the results of its 
investigation within 10 days of completing the investigation. OSM found 
this to be inconsistent with Federal requirements on responding to 
citizens' complaints.
    In this submission, PADEP proposes to address OSM's concern by 
amending 25 Pa. Code 89.143a(d)(1) to add a requirement regarding 
claimant notification. Under the proposed amendment, PADEP would be 
required to notify the claimant and the mine operator of its findings 
within 10 days of completing its investigation. PADEP contends that 
this provision makes Pennsylvania's complaint response time frames no 
less effective than those of the Federal program.
    Finally, PADEP maintains that the proposed regulation change can be 
made without amending section 5.5(c) of the BMSLCA.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 89.143a(d). The amended subsection reads as follows:

    89.143a. Subsidence control: procedure for resolution of 
subsidence damage claims
* * * * *
    (d) Upon receipt of the claim, the Department will send a copy 
of the claim to the operator and conduct an investigation in 
accordance with the following procedure:
    (1) Within 30 days of receipt of the claim, the Department will 
conduct an investigation to determine whether underground mining 
operations caused the subsidence damage to the structure and provide 
the results of its investigation to the property owner and mine 
operator within 10 days of completing the investigation.
    (2) Within 60 days of completion of the investigation, the 
Department will determine, and set forth in writing, whether the 
damage is attributable to subsidence caused by the operator's 
underground mining operations and, if so, the reasonable cost of 
repairing or replacing the damaged structure.
    (3) If the Department finds that the operator's underground 
mining operations caused the damage to the structure, the Department 
will either issue a written order directing the operator to promptly 
compensate the structure owner or issue an order directing the 
operator to promptly repair the damaged structure. The Department 
may extend the time for compliance with the order if the Department 
finds that further damage may occur to the same structure as a 
result of additional subsidence.
* * * * *
    Regulation at 30 CFR 938.16(zzzz). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
the following phrase from section 5.5(f) of the BMSLCA, `` * * * within 
six months or such longer period as the department has established or 
shall fail to perfect an appeal of the department's order directing 
such repair or compensation, * * *''
    Discussion: Section 5.5(f) provides that if a mine operator fails 
to repair or compensate for subsidence damage within six months or 
longer period or fails to perfect an appeal of PADEP's order requiring 
repair or compensation, PADEP shall issue the orders necessary to 
compel compliance. If the operator fails to repair or compensate after 
exhausting its right of appeal, PADEP shall pay the escrow deposit 
required by section 5.5(e) to the owner of the damaged building.
    In disapproving the specific language, OSM found that the portion 
of section 5.5(f) allowing six months or longer to pass before 
Pennsylvania takes an enforcement action is less effective than the 
Federal regulation at 30 CFR 843.12(c), which requires abatement of 
violations within 90 days. As stated in the finding for 5.5(c), an 
operator's failure to promptly repair or compensate for subsidence 
damage is a violation that must be abated within 90 days. As a separate 
issue, OSM also disapproved language in section 5.5(f) that deals with 
perfecting an appeal of the PADEP's orders. OSM stated that the phrase 
prevents Pennsylvania from issuing a cessation order if an operator 
files an appeal, thus acting as a stay and that the provision is not as 
effective as the Federal regulations at 30 CFR 843.16(b) which indicate 
that the filing of an application for review and request for a hearing 
cannot operate as a stay of any notice or order.
    In this submission, PADEP proposes to address OSM's required 
amendment through changes in 25 Pa. Code 89.143a(d) and by proposing 
that the effect of the escrow provision on staying the issuance of 
further orders by PADEP is no less effective than Federal regulations 
at 30 CFR part 843. PADEP asserts that the proposed changes and 
additional information eliminate any need to revise section 5.5(f) of 
BMSLCA.
    Regarding the issue of the six-month compliance periods in 
enforcement orders, PADEP proposes to address OSM's concern regarding 
the length of the compliance period through a change in regulations. 
PADEP notes that section 5.5(c) uses the phrase ``within six months'' 
to describe the time frame in which the operator is expected to comply. 
PADEP asserts that this phrase can be interpreted to require compliance 
in less than six months in situations where it is reasonable to expect 
resolution within a shorter time frame. PADEP states that it clearly 
has authority to require repair or compensation within the 90-day 
period specified by OSM, since 90 days clearly falls ``within six 
months'' of the date an order is issued.
    PADEP's position is that repair or compensation should be provided 
as promptly as possible based on site-specific considerations. PADEP 
argues that the most significant part of the determination turns on 
when PADEP considers subsidence to be complete. PADEP maintains that 
premature repair or compensation does little to minimize inconvenience 
to the property owner and, in some cases, may lead to more severe 
damage.
    Based on its position, PADEP proposes to amend 25 Pa. Code 
89.143a(d) to accomplish three objectives. One is to clarify PADEP's 
intent to require ``prompt'' compliance. The second is to condition 
time extensions for abatement on PADEP determinations that additional

[[Page 55119]]

subsidence is expected to occur. The final objective is to remove all 
references to ``six month'' compliance periods thereby eliminating any 
confusion and potential conflicts.
    The proposal involves the deletion of references to ``the six-month 
period'' mentioned in section 5.5(c) and the addition of a requirement 
for ``prompt'' compliance. PADEP contends that these proposed changes 
will address the required amendments and eliminate any need to revise 
section 5.5(c) of BMSLCA. PADEP notes that the section of the 
regulations that most closely resembles the portion of the statute that 
OSM required to be deleted is 25 Pa. Code 89.143a(d)(3). [See 
discussion under 30 CFR 938.16(yyyy) for information on the disposition 
of 25 Pa. Code 89.143a(d).]
    Regarding the issue of stays of enforcement orders, PADEP is not 
proposing any change in response to OSM's concern that a perfected 
appeal could stay additional enforcement action because it is PADEP's 
position that the effect of a perfected appeal is the same as a 
compensation remedy provided under the Federal regulations. Section 
5.5(e) requires that a mine operator must ``deposit an amount equal to 
the cost of repair or the compensation amount ordered by the Department 
into an interest-bearing escrow account'' in order to perfect its 
appeal. Furthermore, the operator must post the escrow within 60 days 
of receiving the order. PADEP asserts that the deposit of the escrow 
constitutes the provision of compensation because the funds needed to 
repair the damage have been secured from the operator.
    PADEP also maintains that the escrow required to perfect an appeal 
will always be equal to or greater than the amount of compensation 
required under 30 CFR 817.121(c)(2). In accordance with section 5.5(e), 
PADEP notes that the required escrow must be sufficient to cover all 
damage up to the replacement value of the structure and, if required by 
PADEP, temporary relocation costs and other reasonable incidental 
expenses incurred by the landowner.
    In summary, PADEP asserts that the escrow provisions of sections 
5.5(e) and (f) constitute a compensation remedy that is no less 
effective than that of the Federal regulations because it meets or 
exceeds Federal requirements regarding timeliness and the amount of 
compensation. Accordingly, PADEP argues that any stay of further 
enforcement action is of no consequence.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
revise 25 Pa. Code 89.143a(d)(3). The proposed language reads as 
follows:

    89.143a. Subsidence control: procedure for resolution of 
subsidence damage claims.
* * * * *
    (d) Upon receipt of the claim, the Department will send a copy 
of the claim to the operator and conduct an investigation in 
accordance with the following procedure:
* * * * *
    (3) If the Department finds that the operator's underground 
mining operations caused the damage to the structure, the Department 
will either issue a written order directing the operator to promptly 
compensate the structure owner or issue an order directing the 
operator to promptly repair the damaged structure. The Department 
may extend the time for compliance with the order if the Department 
finds that further damage may occur to the same structure as a 
result of additional subsidence.

* * * * *
    In this submission, PADEP proposes that OSM accept the above 
revisions to 25 Pa. Code 89.143a(d)(3), and that the above 
demonstration that the escrow provision at section 5.5(f) is no less 
effective than the Federal enforcement requirements at 30 CFR part 843.
    Regulation at 30 CFR 938.16(aaaaa). Amendment Required by December 
27, 2001, Federal Register Notice: OSM required Pennsylvania to amend 
section 5.6(c) to remove provisions relating to agreements executed 
between April 27, 1966, and August 21, 1994.
    Discussion: Section 5.6(c) of BMSLCA provides:

    The duty created by section 5.5 to repair or compensate for 
subsidence damage to the buildings enumerated in section 5.4(a) 
shall be the sole and exclusive remedy for such damage and shall not 
be diminished by the existence of contrary provisions in deeds, 
leases or agreements which relieved mine operators from such duty. 
Nothing herein shall impair agreements entered into after April 27, 
1966, and prior to the effective date of this section, which, for 
valid consideration, provide for a waiver or release of any duty to 
repair or compensate for subsidence damage. Any such waiver or 
release shall only be valid with respect to damage resulting from 
the mining activity contemplated by such agreement.

    The last two sentences of this section protect the terms and 
conditions of agreements executed under former section 4 of BMSLCA, 
which was effective from April 27, 1966, until August 21, 1994. Section 
4 was repealed by Act 54 of 1994, but while in effect, required the 
absolute protection of dwellings and certain other structures in place 
on April 27, 1966. Section 4 allowed operators and landowners to enter 
into agreements consenting to damage of dwellings and other protected 
structures if the landowner was fully compensated for resultant damage. 
In the December 27, 2001, final rule, OSM stated that these agreements 
could negate an operator's liability to repair or compensate for damage 
to EPAct structures or provide a landowner with less compensation than 
would be due under EPAct. Federal regulations do not waive an 
operator's liability to repair or compensate for damage based on the 
provisions of agreements executed prior to the effective date of EPAct. 
Based on these concerns, OSM directed Pennsylvania to remove the last 
two sentences of section 5.6(c).
    In this submission, PADEP asserts that the provisions under section 
5.6(c), which recognize the terms and conditions of section 4 
agreements, are no longer a cause for concern. This assertion is based 
on the following two considerations: (1) The absence of any agreements 
for post-1966 structures--Because post-1966 structures had no 
protection from subsidence damage until Act 54, it is highly unlikely 
there are any agreements providing for repair or compensation, and (2) 
Agreement under former section 4 provided for full compensation or 
repairs. Because pre-1966 dwellings were completely protected, post-
1966 agreements for those dwellings would have to have provided the 
homeowners more than full compensation or repairs otherwise the owner 
would not have had any reason to enter into an agreement with a mine 
operator.
    PADEP stated that it has not encountered any case where repairs or 
compensation were denied on the basis of an agreement executed under 
former section 4. Furthermore, neither industry nor citizens' interests 
have come forth with any pertinent information regarding these 
agreements or their effect, despite specific inquiries by PADEP and 
OSM.
    At this time, PADEP contends that these agreements no longer play a 
role in the settlement of structure damage cases in Pennsylvania and 
asserts that there is no need to amend section 5.6(c) of BMSLCA.
    PADEP's Proposed Resolution: In this submission, PADEP proposes 
that the provisions relating to agreements entered into after April 27, 
1966, and prior to the effective date of section 5.6, be retained 
pending the receipt of information showing that these provisions result 
in remedies that are less effective than those provided under EPAct. At 
this time, we are requesting information from the public regarding the 
existence of these agreements. If you know that agreements such as 
these

[[Page 55120]]

exist, please provide them to us during the comment period.
    Regulation at 30 CFR 938.16(bbbbb): Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to ensure 
that the provisions of section 5.6(d) reflect OSM's decision in regard 
to 30 CFR 938.16(aaaaa).
    Discussion: In the December 27, 2001, final rule, OSM stated that 
section 5.6(d) includes a reference to the ``pre-1994'' agreements 
mentioned in 5.6(c). Since OSM's earlier decision was to require 
removal of provisions recognizing these agreements (see 30 CFR 
938.16(aaaaa)), it had directed Pennsylvania to amend section 5.6(d) as 
well.
    As explained in the discussion under 30 CFR 938.16(aaaaa), PADEP 
maintains that these agreements no longer play a role in the settlement 
of subsidence damage claims and asserts that there is no need to remove 
the clause in 5.6(c), which recognizes the terms and conditions of 
``pre-1994'' agreements. PADEP maintains that there is no need to 
change section 5.6(d).
    PADEP's Proposed Resolution: In this submission, PADEP proposes 
that the provision regarding agreements entered into after April 27, 
1966, and prior to the effective date of this section be retained 
pending the receipt of information showing that this provision results 
in remedies that are less effective than those provided under EPAct.
    Regulation at 30 CFR 938.16(ccccc). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
section 6 of the BMSLCA to comply with the provisions of 30 CFR 
817.121(c)(5) regarding when, and under what circumstances, the 
regulatory authority must require permittees to obtain additional 
performance bond and the amount of such bond.
    Discussion: In the December 27, 2001, final rule, OSM's required 
amendment was based upon the Federal regulation at 30 CFR 817.121(c)(5) 
that requires permittees to obtain additional bond for repairs or 
compensation for subsidence damage or restoration or replacement of 
water supplies if such remedies are not completed within 90 days. The 
90-day period can be extended up to one year if the regulatory 
authority finds that subsidence is not complete and that not all damage 
has occurred. During the review of Act 54 and the implementing 
regulations, OSM stated that there was no provision in the Pennsylvania 
program to increase bonds for subsidence damage and that the bonds that 
were in place did not cover replacement or restoration of water 
supplies.
    In this submission, PADEP asserts that the current Pennsylvania 
program is no less effective than the Federal requirements relative to 
bonding for subsidence damage to structures and land. This position is 
based upon the way the PADEP addresses bonding for underground mining 
operations as a result of a court decision; People United to Save Homes 
v. Department of Environmental Protection, 1999 EHB 457, aff'd, 789 
A.2d 319 (Pa. Cmwlth. 2001)) (PUSH decision).
    More specifically, 25 Pa. Code 86.150 provides that the minimum 
amount of bond for bituminous coal mining activities is to be $10,000. 
Until the PUSH decision, PADEP had been requiring this amount for all 
underground mining activities. In the PUSH decision, the Environmental 
Hearing Board found this amount was only to be a minimum, not a uniform 
figure to be applied across-the-board with every underground mining 
permit. The Environmental Hearing Board also held that existing factors 
in 25 Pa. Code 86.149 were to be used in determining the amount of 
subsidence bond. As a result, PADEP began setting bond amounts based on 
site-specific conditions. The subsidence bond calculation procedures 
include the value of land, improvements, and developed water sources 
and projections of subsidence damage. The bonds are recalculated each 
time the permit is renewed and each time there is a change in the 
subsidence control plan area. In addition, Pennsylvania proposes to 
amend 25 Pa. Code 86.152(a) to change discretionary bond adjustments to 
mandatory adjustments. The PADEP requirements are supported by guidance 
dated August 1, 2000, ``Procedures for Calculating Mine Subsidence 
Bonds,'' and 25 Pa. Code 86.149 (relating to determination of bond 
amounts).
    Although BMSLCA does not contain a specific provision directing 
PADEP to require bonds to ensure the replacement of affected water 
supplies, PADEP asserts that it can apply the provisions of 25 Pa. Code 
86.168 (relating to terms and conditions for liability insurance) to 
accomplish the same objective. Section 86.168(c) requires a permittee 
to have a liability insurance policy. The regulation requires the 
policy to include coverage for loss or diminution of quantity or 
quality of public or private sources of water. The liability insurance 
policy requirement is a minimum $500,000 per occurrence and $1 million 
aggregate. Also, 25 Pa. Code 86.168(g) provides that a bond or 
individual insurance policy for each permit may be provided in lieu of 
liability insurance to cover replacement or restoration of water 
supplies. PADEP conducts reviews of permittee insurance policies both 
at the time of permit issuance and yearly to ensure that there is 
coverage for the replacement of water supplies that may be damaged and 
in need of replacement at any point during the mining operation. PADEP 
also notes that OSM has approved insurance as an acceptable means of 
addressing damages in at least one other State program.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 86.152 as follows:

    86.152. Bond adjustments.
    (a) The amount of bond required and the terms of the acceptance 
of the applicant's bond will be adjusted by the Department from time 
to time as the area requiring bond coverage is increased or 
decreased, or where the cost of future reclamation changes, or where 
the projected subsidence damage repair liability changes. The 
Department may specify periodic times or set a schedule for 
reevaluating and adjusting the bond amount to fulfill this 
requirement. This requirement shall only be binding upon the 
permittee and does not compel a third party, including surety 
companies, to provide additional bond coverage and does not extend 
the coverage of a subsidence bond beyond the requirements imposed by 
sections 5, 5.4, 5.5, and 5.6 of the Bituminous Mine Subsidence and 
Land Conservation Act.
* * * * *

    In this submission, PADEP further proposes that OSM accept the 
insurance requirements imposed by 25 Pa. Code 86.168(c) as being as 
effective as the Federal requirements relating to bonding for water 
supply replacement.
    Regulation at 30 CFR 938.16(ddddd). Amendment Required by December 
27, 2001 Federal Register Notice: OSM directed Pennsylvania to remove 
the definition of ``de minimis cost increase,'' which appears in 25 Pa. 
Code 89.5 (relating to definitions).
    Discussion: Pennsylvania's regulations incorporate the concept of a 
de minimis cost increase to define a lower threshold below which 
operators will not be required to compensate for the increased cost of 
operating and maintaining a replacement water supply. The term is 
defined in 25 Pa. Code 89.5 and applied in former section 25 Pa. Code 
89.145a(f)(1) (now under 89.145a(f)(5)). The term is defined to mean a 
cost increase that meets one of the following criteria:
    (i) Is less than 15% of the annual operating and maintenance cost 
of the previous water supply that is restored or replaced.
    (ii) Is less than $60 per year.
    In the December 27, 2001, final rule, OSM disapproved the 
definition of ``de minimis cost increase,'' which appears

[[Page 55121]]

in 25 Pa. Code 89.5. OSM reasoned that this definition in combination 
with the performance standard in 25 Pa. Code 89.145a(f)(1) would allow 
some increased costs associated with the operation and maintenance of a 
replacement water supply to be passed along to the landowner or water 
user. OSM noted that a 15% increase or $60 increase could be excessive 
depending on the costs of operating and maintaining the original water 
supply. OSM explained that the intent of the Federal regulation is to 
ensure that ``[t]he owner or user of the water supply is made whole, 
and that no additional costs are passed on to the water supply user.'' 
(60 FR 16726).
    During the joint meeting process, PADEP explained that the purpose 
of the de minimis concept was to define a threshold below which it is 
impossible to tell whether a replacement water supply was more costly 
to operate and maintain than the original supply. PADEP noted that cost 
calculations are based on a number of variables and cannot be 
determined to the exact dollar. The thresholds described in 25 Pa. Code 
89.5 represented PADEP's best estimate of where to draw the line and 
were based on decisions issued by Pennsylvania courts. OSM, however, 
reiterated its concern that the definition included specific amounts 
that may or may not be de minimis depending on the specific facts of a 
case.
    To resolve this issue, PADEP has decided to amend its regulations 
so that the provisions relating to de minimis cost increases will not 
apply to EPAct water supplies. The definition and concept will be 
retained for restored or replacement water supplies that are outside 
the scope of the Federal regulations. Additional explanations and 
details regarding PADEP's proposed regulatory amendment are provided 
under 30 CFR 938.16(pppp) and (uuuuu).
    Proposed Resolution: PADEP proposes to retain the definition and 
concept of a de minimis cost increase for application in cases that are 
outside the scope of the Federal regulations. The performance standard 
in 25 Pa. Code 89.145a(f) will be amended to clarify that the term does 
not apply in cases involving EPAct water supplies. Proposed amendments 
to 25 Pa. Code 89.145a(f) are shown in the response to 30 CFR 
938.16(uuuuu).
    Regulation at 30 CFR 938.16(eeeee). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to delete 
the definition of ``fair market value'' from 25 Pa. Code 89.5.
    Discussion: The requirement to delete the term fair market value 
and its associated definition was based on OSM's disapproval of 
Pennsylvania statutory and regulatory provisions that allow 
compensation in lieu of water supply replacement. The term ``fair 
market value'' is used in sections 5.2 and 5.3 of the BMSLCA and 25 Pa. 
Code 89.152 to establish standards for compensation in cases where 
affected water supplies cannot be replaced.
    In this submission, PADEP asserts that the term fair market value 
and its associated definition are needed to establish standards for 
adequate compensation and to conform to Federal requirements relating 
to situations where water supplies cannot be replaced. As indicated in 
the discussion under 30 CFR 938.16(nnnn), (oooo), qqqq) and (rrrr), OSM 
would regard the inability to replace an EPACT water supply as material 
damage to the property served by the affected water supply and would 
require the operator to compensate the landowner for the reduction in 
fair market value. The Department has proposed amendments to 25 Pa. 
Code 89.152(a)(5) to provide an equivalent remedy for these situations. 
Section 89.152(a)(5) also uses the term fair market value in describing 
the required amount of compensation. The term fair market value is 
needed to demonstrate that Pennsylvania's standard of compensation is 
no less effective than the Federal standard. PADEP asserts that the 
definition of ``fair market value'' should be retained.
    Proposed Resolution: PADEP is proposing that this explanation 
satisfies the required amendment in 30 CFR 938.16(eeeee) and that the 
definition of ``fair market value'' be retained in 25 Pa. Code 89.5.
    Regulation at 30 CFR 938.16(fffff). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
the phrase ``securely attached to the land surface'' in the definition 
of ``permanently affixed appurtenant structures'' in 25 Pa. Code 89.5.
    Discussion: In the December 27, 2001, final rule, OSM found that 
Pennsylvania's definition of ``permanently affixed appurtenant 
structures'' is less effective than the Federal regulations. The 
Federal definition of the term ``occupied residential dwelling and 
structures related thereto'' at 30 CFR 701.5 lists examples of 
protected facilities. Pennsylvania has adopted a similar listing of 
protected facilities in its definition of ``permanently affixed 
appurtenant structures.'' However, in that definition, Pennsylvania 
requires that these facilities be ``securely attached to the land 
surface.'' OSM viewed this requirement as a qualification that could 
potentially exclude some EPAct structures from repair or compensation 
under Pennsylvania's program.
    To address OSM's required amendment, PADEP proposes to amend its 
regulations to delete the requirement for secure attachment to the land 
surface for the group of ``permanently affixed appurtenant structures'' 
that falls within the scope of the Federal regulations. This change 
will be accomplished by deleting the term and definition in 25 Pa. Code 
89.5 and by adding a description to 25 Pa. Code 89.142a(f)(1)(iii). The 
description in amended 25 Pa. Code 89.142a(f)(1)(iii) is derived from 
the Federal definition of ``occupied residential dwelling and 
structures related thereto'' and is intended to include all 
``permanently affixed appurtenant structures'' that qualify as EPACT 
structures. The proposed description does not require secure attachment 
to the land surface as a qualification for inclusion.
    PADEP also proposes to identify a second group of permanently 
affixed appurtenant structures that are addressed solely under the 
BMSLCA. Structures in this group derive eligibility for repair and 
compensation provisions based on their relationship to buildings that 
are accessible to the public. This group of permanently affixed 
appurtenant structures is described in 25 Pa. Code 89.142a(f)(1)(i). 
The proposed description includes that same structure types identified 
in 25 Pa. Code 89.142a(f)(1)(iii), but retains the requirement for 
attachment to the land surface. The proposed change preserves an aspect 
of Pennsylvania's program, which is outside the scope of the Federal 
regulations.
    In this submission, PADEP asserts that the proposed changes will 
ensure that Pennsylvania's subsidence damage repair and compensation 
provisions apply to all structures that fall within the scope of the 
Federal term ``occupied residential dwelling and structures related 
thereto.'' PADEP proposes that this will satisfy the requirement in 30 
CFR 938.16(fffff).
    PADEP's Proposed Resolution: In this submission, PADEP is proposing 
to delete the term ``permanently affixed appurtenant structures'' and 
its associated definition from 25 Pa. Code 89.5.
    PADEP is also proposing to amend 25 Pa. Code 89.142a(f)(1)(i) and 
(iii) to distinguish between appurtenant structures covered by EPAct 
and other appurtenant structures covered

[[Page 55122]]

exclusively by BMSLCA. The proposed changes are as follows:

    89.142a. Subsidence control: performance standards.
* * * * *
    (f) Repair of damage to structures.
    (1) Repair or compensation for damage to certain structures. 
Whenever underground mining operations conducted on or after August 
21, 1994, cause damage to any of the structures listed in 
subparagraphs (i)-(v), the operator responsible for extracting the 
coal shall promptly and fully rehabilitate, restore, replace or 
compensate the owner for material damage to the structures resulting 
from the subsidence unless the operator demonstrates to the 
Department's satisfaction that one of the provisions of section 
89.144a (relating to subsidence control: relief from responsibility) 
relieves the operator of responsibility.
    (i) Buildings that are accessible to the public including, but 
not limited to, commercial, industrial and recreational buildings 
and all structures that are securely attached to the land surface 
and adjunct to or used in conjunction with these buildings, 
including, garages; storage sheds and barns; greenhouses and related 
buildings; customer-owned utilities and cables; fences and other 
enclosures; retaining walls; paved or improved patios; walks and 
driveways; septic sewage treatment facilities; inground swimming 
pools, and lot drainage and lawn and garden irrigation systems.
* * * * *
    (iii) Dwellings which are used for human habitation and 
permanently affixed appurtenant structures or improvements. In the 
context of this paragraph, the phrase permanently affixed 
appurtenant structures and improvements includes, but is not limited 
to, structures adjunct to or used in conjunction with dwellings, 
such as but not limited to, garages; storage sheds and barns; 
greenhouses and related buildings; customer-owned utilities and 
cables; fences and other enclosures; retaining walls; paved or 
improved patios; walks and driveways; septic sewage treatment 
facilities; inground swimming pools, and lot drainage and lawn and 
garden irrigation systems.
* * * * *

    Regulation at 30 CFR 938.16(ggggg). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.141(d)(3) to expand its requirement that subsidence 
control plans include descriptions of the measures to be taken to 
prevent material damage to dwellings and related structures and 
noncommercial buildings when mining methods do not result in planned 
subsidence.
    Discussion: Section 89.141(d)(3) requires descriptions of measures 
to be taken to ensure that subsidence will not cause material damage 
to, or reduce the reasonably foreseeable uses of, public buildings and 
facilities, churches, schools, hospitals, impoundments with storage 
capacities of 20 acre-feet or more, bodies of water with volumes of 20 
acre-feet or more, and bodies of water and aquifers that serve as 
significant sources to public water supply systems. It also lists 
various measures that may be used to comply with this requirement. 
Section 89.141(d)(3) reflects the provisions of section 9.1(c) of the 
BMSLCA and is the State counterpart to 30 CFR 817.121(d).
    In the December 27, 2001, final rule, OSM stated that this 
subsection requires that, for each structure and feature, or class of 
structures and features, described in 25 Pa. Code 89.142a(c) (which 
includes public buildings and facilities, churches, schools, hospitals, 
certain sized impoundments and bodies of water, and bodies of water or 
aquifers which serve as a significant source to a public water supply 
system), there must be a description of the measures to be taken to 
ensure that subsidence will not cause material damage to, or reduce the 
reasonably foreseeable uses of, the structures or features. The Federal 
rule at 30 CFR 784.20(b)(5) requires for non-planned subsidence a 
description of measures that will be taken to prevent or minimize 
subsidence and subsidence-related damage. The Federal rule does not 
limit the descriptions to specific structures or features, while 
Pennsylvania's regulation does limit the description to specified 
structures and features. Therefore, OSM noted that to the extent that 
the description is not all-inclusive (for example, dwellings, buildings 
accessible to the public, and noncommercial buildings customarily used 
by the public would not be included), PADEP must amend its program to 
provide the protection of 30 CFR 784.20(b)(5).
    In this submission, PADEP proposes extensive changes to 25 Pa. Code 
89.141(d) and 25 Pa. Code 89.142a(d) to address OSM's concern and to 
more clearly distinguish between requirements pertaining to mining that 
results in planned subsidence versus mining that does not result in 
planned subsidence. The proposed amendments establish different 
approaches to protecting noncommercial buildings, dwellings and related 
structures (EPAct structures) depending on the type of mining an 
operator plans to use. If plans involve mining that does not result in 
planned subsidence, an operator must take measures to prevent 
subsidence that would cause material damage to EPAct structures. If 
plans involve mining that is projected to result in planned subsidence, 
an operator must develop his plans around alternate measures, which are 
described in the discussion under 30 CFR 938.16(hhhhh).
    The proposed amendments also include an editorial change relating 
to descriptions of measures for protecting 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 amendment 
deletes the partial list of measures in existing 25 Pa. Code 
89.141(d)(3). This change ensures that applicants will consider the 
full list of measures in 25 Pa. Code 89.142a(c) when preparing plans 
for mining beneath or adjacent to these structures.
    During the joint meeting process, PADEP noted that there is an 
inconsistency in the Federal regulations at 30 CFR 784.20 with respect 
to preventing material damage when using methods of mining that do not 
result in planned subsidence. In describing the contents of subsidence 
control plans, 30 CFR 784.20(a)(5) indicates that the standard is to 
``prevent or minimize'' damage. By contrast, 30 CFR 817.121 (relating 
to subsidence control performance standards) indicates the standard is 
to ``prevent'' damage. OSM advised that the requirement to prevent 
material damage when using methods that do not result in planned 
subsidence is based on section 516 of SMCRA, which uses the term 
``prevent'' and requested that PADEP use this standard in amending its 
regulations.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
address OSM's concerns through amendments to 25 Pa. Code 89.141(d)(3) 
and 25 Pa. Code 89.142a(d). Proposed changes are as follows:

    89.141. Subsidence control: application requirements.
* * * * *
    (d) Subsidence control plan. The permit application shall 
include a subsidence control plan which describes the measures to be 
taken to control subsidence effects from the proposed underground 
mining operations. The plan shall address the area in which 
structures, facilities or features may be materially damaged by mine 
subsidence. At a minimum, the plan shall address all areas with a 
30[deg] angle of draw of underground mining operations which will 
occur during the 5-year term of the permit. The subsidence control 
plan shall include the following information:
* * * * *
    (3) For each structure and feature, or class of structures and 
features, described in 25 Pa. Code 89.142a(c) (relating to 
subsidence control: performance standards), a detailed description 
of the measures to be taken to ensure that subsidence will not cause

[[Page 55123]]

material damage to, or reduce the reasonably foreseeable uses of the 
structures or features.
    (4) A description of the anticipated effects of planned 
subsidence, if any.
    (5) A description of the measures to be taken to correct any 
subsidence-related material damage to the surface land.
    (6) A description of the measures to be taken to prevent 
irreparable damage to the structures enumerated in 25 Pa. Code 
89.142a(f)(1)(iii)-(v), if the structure owner does not consent to 
the damage.
    (7) A description of the monitoring, if any, the operator will 
perform to determine the occurrence and extent of subsidence so 
that, when appropriate, other measures can be taken to prevent or 
reduce or correct damage in accordance with 89.142a(e) and (f).
    (8) A description of the measures to be taken to maximize mine 
stability and maintain the value and reasonably foreseeable use of 
the surface land.
    (9) For EPAct structures other than noncommercial buildings 
protected under 89.142a(c), a description of the methods to be 
employed in areas of planned subsidence to minimize damage or 
otherwise comply with the requirements of 89.142a(d)(1)(i).
    (10) For EPAct structures other than noncommercial buildings 
protected under 89.142a(c), a description of the subsidence control 
measures to be taken in accordance with 89.142a(d)(1)(ii) to prevent 
subsidence and subsidence-related damage in areas where underground 
mining operations are not projected to result in planned subsidence.
    (Paragraphs 11 and 12 will be renumbered.)
    89.142a. Subsidence control: performance standards.
* * * * *
    (d) Protection of certain EPAct structures and agricultural 
structures.
    (1) For EPAct structures other than noncommercial buildings 
protected under subsection (c):
    (i) If an operator employs mining technology that provides for 
planned subsidence in a predictable and controlled manner, the 
operator shall take necessary and prudent measures, consistent with 
the mining method employed, to minimize material damage to the 
extent technologically and economically feasible to the structure, 
except where one of the following applies:
    (A) The structure owner has consented, in writing, to allow 
material damage.
    (B) The costs of such measures would exceed the anticipated cost 
of repairs and the anticipated damage will not constitute a threat 
to health or safety.
    (ii) If an operator employs mining technology that does not 
result in planned subsidence in a predictable and controlled manner, 
the operator shall adopt measures consistent with known technology 
to prevent subsidence and subsidence-related damage to the extent 
technologically and economically feasible to the structure. Measures 
may include, but are not limited to:
    (A) Backstowing or backfilling of voids.
    (B) Leaving support pillars of coal.
    (C) Leaving areas in which no coal is removed, including a 
description of the overlying area to be protected by leaving coal in 
place.
    (D) Taking measures on the surface to prevent or minimize 
material damage or diminution in value of the surface.
    (E) Other measures approved by the Department.
* * * * *
    (3) Nothing in paragraphs (1) or (2) shall be construed to 
prohibit planned subsidence in a predictable and controlled manner 
or the standard method of room and pillar mining.

* * * * *
    Regulation at 30 CFR 938.16(hhhhh). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.141(d)(6) to require subsidence control plans to include 
descriptions of the measures to be taken to minimize material damage to 
dwellings and related structures and noncommercial buildings when 
mining methods are projected to result in planned subsidence.
    Discussion: Section 25 Pa. Code 89.141(d)(6) requires a description 
of the measures to be taken to prevent irreparable damage to structures 
enumerated in 25 Pa. Code 89.142a(f)(1)(iii)-(v) (i.e., occupied 
residential dwellings and related structures and certain agricultural 
structures). In the December 27, 2001, final rule, OSM found that while 
this regulation addresses situations where irreparable damage is 
predicted, it does not address situations where EPAct structures may 
suffer material damage. OSM noted that 30 CFR 784.20(b)(5) and (7) 
require descriptions of measures to prevent or minimize material damage 
to EPAct structures depending on the type of proposed mining. OSM 
further stated that the required protection is not provided in other 
parts of Pennsylvania law or regulation.
    To address this difference, OSM directed PADEP to amend 25 Pa. Code 
89.141(d)(6) to incorporate the Federal requirements in 30 CFR 
784.20(b)(5) and (7). Paragraph (b)(5) requires a description of the 
measures to be taken to prevent subsidence damage to EPAct structures 
in situations where mining will not result in planned subsidence. 
Paragraph (b)(7) requires, with certain exceptions, a description of 
the measures to be taken to minimize damage to EPAct structures in 
situations where mining is projected to result in planned subsidence.
    In response to OSM's concern, PADEP has proposed extensive 
amendments to 25 Pa. Code 89.141(d) and 25 Pa. Code 89.142a(d). These 
changes, which are also discussed under 30 CFR 938.16(ggggg), require 
subsidence control plans to include descriptions of the measures to be 
taken when planned subsidence is projected to result in material damage 
to an EPAct structure. The measures, which are described in 25 Pa. Code 
89.142a(d), include taking measures to minimize damage to the extent 
technologically and economically feasible; obtaining the landowner's 
consent to allow damage; and evaluating the need for damage 
minimization measures based on cost, health and safety considerations.
    PADEP's Proposed Resolution: In this submission, PADEP is proposing 
amendments to 25 Pa. Code 89.141(d) and 89.142a(d) that will make 
Pennsylvania's requirements no less effective than Federal requirements 
in regard to the protection of EPAct structures. These amendments are 
presented in the proposed resolution to 30 CFR 938.16(ggggg). PADEP 
maintains that the proposed amendments will satisfy the required 
amendment at 30 CFR 938.16(hhhhh).
    Regulation at 30 CFR 938.16(iiiii). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.142a(c)(3) (regarding public buildings and facilities, 
churches, schools, hospitals, impoundments with a storage capacities of 
20 acre-feet or more, bodies of water with volumes of 20 acre-feet or 
more, and aquifers or bodies of water that serve as significant sources 
for public water supply systems) to make it as effective as 30 CFR 
817.121(e), which imposes on the regulatory authority the obligation to 
require permittees to modify subsidence control plans to ensure the 
prevention of further material damage in the cases where the initial 
plan or operator's actions fail and provides the authority to suspend 
mining until such a plan is approved.
    Discussion: Subsection 89.142a(c)(3) states that if the measures 
implemented by the operator cause material damage to or reduce the 
reasonably foreseeable use of structures or features listed in 
paragraph (1), PADEP will impose additional measures to minimize the 
potential for these effects. In the December 27, 2001, final rule, OSM 
indicated that 30 CFR 817.121(e) imposes on the regulatory authority 
the obligation to require a permittee to modify its subsidence control 
plan to ensure the prevention of further material damage in the cases 
where the initial plan or the operator's actions fail. In addition, 30 
CFR 817.121(e) provides the authority to suspend mining until such a 
plan is approved. Pennsylvania did not establish that the regulations 
at 25 Pa. Code 89.142a(c)(3) allow it the discretion to suspend mining 
until the operator's subsidence control plan ensures the prevention of 
further

[[Page 55124]]

material damage. OSM concluded by indicating that Pennsylvania's 
regulation merely requires additional measures to minimize the effects, 
but does not give Pennsylvania the option to stop the mining until it 
reviews the additional measures and determines that the measures will 
minimize the effects.
    In this submission, PADEP proposes to amend 25 Pa. Code 
89.142a(c)(3) to incorporate the provisions requested by OSM. PADEP 
asserts that these changes will make Pennsylvania's program as 
effective as the Federal program in dealing with situations where 
approved measures fail to prevent material damage or reduce the 
reasonably foreseeable use of public buildings and facilities, 
churches, schools, hospitals, impoundments with a storage capacities of 
20 acre-feet or more, bodies of water with volumes of 20 acre-feet or 
more, and aquifers or bodies of water that serve as significant sources 
for public water supply systems. PADEP also notes that the structures 
or features addressed by this regulation are the same as those 
addressed by 30 CFR 817.121(d) and (e). PADEP maintains that no changes 
to the BMSLCA are necessary to accommodate this regulation change.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 89.142a(c)(3) in the following manner.

    89.142a. Subsidence control: performance standards.
* * * * *
    (c) Restrictions on underground mining.
* * * * *
    (3) If the measures implemented by the operator cause material 
damage or reduce the reasonably foreseeable use of the structures or 
features listed in paragraph (1), the Department may suspend mining 
under or adjacent to these structures or features until the 
subsidence control plan is modified to ensure prevention of further 
material damage to these facilities or features.

    Regulation at 30 CFR 938.16(jjjjj). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.142a(d) to ensure the prevention of material damage to 
occupied residential dwellings and community or institutional buildings 
(i.e., EPAct structures) in areas where mining is not projected to 
result in planned subsidence.
    Discussion: Subsection 89.142a(d) provides that if a proposed 
mining technique or extraction ratio will result in irreparable damage 
to certain structures (dwellings, barns, silos, and permanently affixed 
agricultural structures greater than 500 sq. ft. in area), the operator 
may not use the technique or extraction ratio unless the building 
owner, prior to mining, consents to the mining or the operator takes 
measures to minimize or reduce impacts resulting from subsidence. In 
the December 27, 2001, final rule, OSM found that the Federal 
regulations do not provide for an irreparable damage standard and while 
the provisions of 25 Pa. Code 89.142a(d) are no less effective than the 
Federal regulations regarding structures in danger of being irreparably 
damaged, the requirements are less effective in regard to structures 
that may be materially damaged because it provides no protection for 
those structures.
    In this submission, PADEP proposes to address OSM's concern by 
amending 25 Pa. Code 89.142a(d) to require the prevention of material 
damage in cases where operators use mining methods that are not 
projected to result in planned subsidence. PADEP asserts that this will 
make Pennsylvania's regulations no less effective than the Federal 
regulations in regard to the protection of EPAct structures.
    PADEP's Proposed Resolution: In this submission, PADEP is proposing 
amendments to 25 Pa. Code 89.142a(d) that it maintains will address the 
requirement in 30 CFR 938.16(jjjjj). These changes are described in the 
response to 30 CFR 938.16(ggggg).
    Regulation at 30 CFR 938.16(kkkkk). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.142a(f)(1) to secure prompt repair or compensation to 
landowners. OSM made a similar requirement at 938.16(tttt) in regard to 
section 5.4 of the BMSLCA.
    Discussion: See discussion under 30 CFR 938.16(tttt) in regard to 
section 5.4 of the BMSLCA.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 89.142a(f)(1) as shown under 30 CFR 938.16(tttt). 
PADEP maintains that these proposed changes will also satisfy the 
requirement in 30 CFR 938.16(kkkkk).
    Regulation at 30 CFR 938.16(lllll). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
section 25 Pa. Code 89.142a(f)(1)(iii) to remove the phrase, ``in place 
on the effective date of this section or on the date of first 
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the 
boundary of the entire mine as depicted in said application.''
    Discussion: This section is similar to section 5.4(a)(3) of the 
BMSLCA. See discussion under 30 CFR 938.16(uuuu).
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 89.142a(f)(1)(iii) as shown in the proposed 
resolution to 30 CFR 938.16(uuuu). PADEP asserts that this will also 
satisfy the required amendment at 30 CFR 938.16(lllll). In order for 
this change to become effective, PADEP contends that OSM must supersede 
the language in section 5.4(a)(3) of BMSLCA which serves as a basis for 
this qualification. The rule proposing to supersede this portion of 
BMSLCA is located elsewhere in this Federal Register issue.
    Regulation at 30 CFR 938.16(mmmmm). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.142a(g)(1) to require that all underground mining 
activities be conducted in a manner consistent with 30 CFR 817.180.
    Discussion: Section 89.142a(g)(1) protects utilities from adverse 
effects caused by ``underground mining.'' In the December 27, 2001, 
final rule, OSM observed that ``underground mining'' is defined in 
Pennsylvania's regulations as the extraction of coal in an underground 
mine. The Federal rule at 30 CFR 817.180 requires that all underground 
mining activities, not just underground mining, must be planned and 
conducted in a manner that minimizes damage, destruction or disruption 
in services provided by utilities. In the December 27, 2001, final 
rule, OSM found that the Federal rule is more inclusive of the 
activities that must be conducted in a manner that minimizes damage, 
destruction or disruption in services.
    In response to the required amendment, PADEP is proposing to revise 
25 Pa. Code 89.142a(g)(1) to replace the term ``underground mining'' 
with ``underground mining operations.'' PADEP maintains that this 
change, in combination with the protections already provided under 
existing 25 Pa. Code 89.67 (relating to support facilities), defines a 
scope of coverage equivalent to that in 30 CFR 817.180.
    The proposal to replace the term ``underground mining'' with 
``underground mining operations'' will extend the scope of 25 Pa. Code 
89.142a(g)(1) to include effects arising from any activities that take 
place in the subsurface parts of an underground mine. The term 
``underground mining operations,'' which is defined in 25 Pa. Code 
89.5, includes underground construction, operation and reclamation of 
shafts, adits, support facilities located underground, in situ 
processing and underground mining, hauling, storage and blasting. The 
term effectively

[[Page 55125]]

captures all activities included in paragraph (b) of the Federal 
definition of ``underground mining activities'' in 30 CFR 701.5.
    In this submission, Pennsylvania indicated that its existing 
regulation at 25 Pa. Code 89.67(b) sets forth utility protection 
requirements that apply to activities at surface sites used in 
connection with underground mines. Section 89.67(b) uses the term 
``surface mining activities'' to describe the range of activities that 
fall within the scope of utility protection requirements. The term 
``surface mining activities'' is defined in Sec.  86.1 to include all 
surface activity connected with underground mining. This, in effect, 
includes all activities that fall within the scope of paragraph (a) of 
the Federal definition of ``underground mining activities.''
    Together, Pennsylvania maintains that the provisions of existing 25 
Pa. Code 89.67(b) and the provisions of proposed 25 Pa. Code 
89.142a(g)(1) cover all activities included within the scope of the 
Federal term ``underground mining activities.'' In addition, both 25 
Pa. Code 89.67(b) and 89.142a(g)(1) require an operator to conduct 
activities in a manner that minimizes damage, destruction or disruption 
in services provided by oil, gas and water wells; oil, gas and coal 
slurry pipelines; railroads; electric and telephone lines; and water 
and sewerage lines which pass under, over, or through the permit area, 
unless otherwise approved by the owner of the facilities and the 
Department. Pennsylvania maintains that the protection provided by 25 
Pa. Code 89.67(b) and 89.142a(g) is therefore as effective as that 
provided by 30 CFR 817.180.
    In this submission, PADEP asserts that the requirement in 30 CFR 
938.16(mmmmm) can be fully satisfied by amending Sec.  89.142a(g)(1) to 
make protection requirements applicable to all ``underground mining 
operations.''
    PADEP's Proposed Resolution: In this submission, PADEP proposes 
that we accept the following proposed changes to 25 Pa. Code 
89.142a(g)(1) as fulfilling the requirement in 30 CFR 938.16(mmmmm).

    89.142a. Subsidence control: performance standards.
* * * * *
    (g) Protection of utilities.
    (1) Underground mining operations shall be planned and conducted 
in a manner which minimizes damage, destruction or disruption in 
services provided by oil, gas and water wells; oil, gas and coal 
slurry pipelines; rail lines; electric and telephone lines; and 
water and sewerage lines which pass under, over, or through the 
permit area, unless otherwise approved by the owner of the 
facilities and the Department.
* * * * *

    Regulation at 30 CFR 938.16(nnnnn). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
the phrase from 25 Pa. Code 89.143a(c) that states, `` * * * within 6 
months of the date that the building owner sent the operator 
notification of subsidence damage to the structure * * *'' 
Additionally, the amendment must remove the phrase, ``within 2 years of 
the date damage to the structure occurred.'' OSM made a similar 
requirement at 30 CFR 938.16(xxxx) with regard to section 5.5(b) of the 
BMSLCA.
    Discussion: See discussion and proposed resolution under 30 CFR 
938.16(xxxx), including proposed amendments to 25 Pa. Code 89.143a(c).
    PADEP's Proposed Resolution: See PADEP's proposed regulatory 
amendment and OSM supersession action described under 30 CFR 
938.16(xxxx). PADEP maintains that these changes satisfy the required 
amendment at 30 CFR 938.16(nnnnn).
    Regulation at 30 CFR 938.16(ooooo). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
the sentences from 25 Pa. Code 89.143a(d)(3) that state, `` * * * 
within 6 months of the date of issuance of the order. The Department 
may allow more than 6 months if the Department finds that further 
damage may occur to the same structure as a result of additional 
subsidence.'' OSM made a similar requirement at 30 CFR 938.16(yyyy) 
with regard to section 5.5(c) of the BMSLCA.
    Discussion: See discussion under 30 CFR 938.16(yyyy).
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 89.143a(d)(3) as shown under 30 CFR 938.16(yyyy). 
PADEP asserts that this satisfies the required amendment at 30 CFR 
938.16(ooooo).
    Regulation at 30 CFR 938.16(ppppp). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
25 Pa. Code 89.144(a)(1), which provides a waiver of liability that is 
inconsistent with Federal regulations.
    Discussion: This is the same issue that was raised under 30 CFR 
938.16(vvvv) in regard to section 5.4(c) of BMSLCA. In this submission, 
PADEP agreed to restrict this waiver so it cannot be raised in cases 
involving EPAct structures.
    PADEP's Proposed Resolution: See proposed regulatory amendment and 
OSM supersession described under 30 CFR 938.16(vvvv). PADEP asserts 
that this satisfies the required amendment under OSM Rule 30 CFR 
938.16(ppppp).
    Regulation at 30 CFR 938.16(qqqqq). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.145a(a)(1) to address three concerns regarding the 
performance of premining water supply surveys.
    Discussion: Section 25 Pa. Code 89.145a(a)(1) establishes 
requirements relating to the performance of premining water supply 
surveys. In the December 27, 2001, final rule, OSM had three concerns 
regarding the requirements of this section: (1) It provides that survey 
information must only be obtained to the extent that it can be 
collected without extraordinary efforts or the expenditure of excessive 
sums of money; (2) It allows premining surveys to be delayed until 
mining advances within 1,000 feet of a water supply; and (3) It does 
not indicate how Pennsylvania's premining survey requirements comply 
with 30 CFR 784.20(a)(3) relating to the submission of survey results 
for all EPAct water supplies at the time of permit application.
    Regarding limitations on collection of premining survey 
information, OSM observed that 25 Pa. Code 89.145a(a)(1) provides that 
survey information is required only to the extent that it can be 
collected without extraordinary efforts or expenditures of excessive 
sums of money. OSM further observed that the Federal regulations 
require the collection of survey information without regard to the 
level of effort or expense involved in obtaining the information. Based 
on its analysis, OSM directed PADEP to amend 25 Pa. Code 89.145a(a)(1) 
to clarify that the requirement to collect survey information to the 
extent that collection can be accomplished without extraordinary 
efforts or expenditures of excessive sums of money, is only applicable 
when it applies to inconveniencing landowners.
    In this submission, PADEP proposes to address OSM's requirement by 
amending 25 Pa. Code 89.145a(a)(1) to replace the condition relating to 
``extraordinary efforts or excessive sums of money'' with a condition 
relation to ``excessive inconvenience to the landowner.'' Under the 
amended regulation, an operator would be required to collect all survey 
information listed in subparagraphs (i)-(v) to the extent that 
collection could be accomplished without excessive inconvenience to a 
property owner. The proposed amendment would relieve an

[[Page 55126]]

operator of the obligation to collect information that would clearly 
result in an excessive inconvenience to a landowner. An example of an 
excessive inconvenience would be the need to demolish part of a 
dwelling to access a well for water level measurement. Lesser 
inconveniences, such as the need to pump a well for several hours or 
the need to disconnect treatment systems for purposes of quality 
sampling, would not normally qualify as excessive.
    Regarding the concern on use of the 1,000-foot distance parameter, 
OSM disapproved the provision allowing mining to advance to within 
1,000 feet of a water supply before the completion of the premining 
survey. OSM reasoned that mining-related effects could occur at 
distances greater than 1,000 feet and that delaying surveys to the time 
mining advances to within the 1,000-foot distance could result in data 
that does not accurately reflect premining conditions.
    In this submission, PADEP also proposes to address OSM's concern by 
amending 25 Pa. Code 89.145a(a)(1) to remove the 1,000-foot criterion 
and clarify the requirement to collect premining survey information 
prior to the time a water supply is susceptible to mining-related 
effects. The determination of when surveys must be completed will be 
determined by PADEP technical staff based on information in the permit 
application, PADEP database information relating to the distances at 
which impacts have been documented to occur, and the reviewer's 
knowledge of conditions in the general area. Sampling distances 
specific to each mine and, if appropriate, to individual areas within a 
mine, will be established by permit condition.
    Regarding the concern relating to delayed premining surveys, OSM 
also directed PADEP to demonstrate that Pennsylvania's premining survey 
requirements were in compliance with its guidance regarding delayed 
water supply surveys. This guidance was issued in a memorandum to the 
Regional Directors dated February 9, 1998, titled ``Timing of 
Presubsidence Surveys,'' and in March 9, 1999, letters to IMCC and Tri-
State Citizens Mining Network (March 1999 letters). It provided that 
baseline data collected at the time of permit application must be 
sufficient to develop the probable hydrologic impact determination 
(PHC) and cumulative hydrologic impact assessment (CHIA) and that 
States may use the regulatory program amendment process to identify 
what additional information required under 30 CFR 784.20(a)(3) must be 
submitted at the time of permit application and which, if any, could be 
collected at a time closer to when mining would actually occur. OSM 
committed to giving consideration to approving State program amendments 
that identify water supply information required under 30 CFR 784.20(a) 
which could be collected closer to the time when mining actually occurs 
instead of being submitted at the time of permit application. Finally, 
OSM required that States must demonstrate, through the regulatory 
program amendment process for any delayed water supply surveys, that 
those analyses would be completed sufficiently in advance of mining to 
avoid any adverse effect to the water supply.
    OSM's March 1999 letters were written to clarify OSM's view that a 
program amendment that assures that analysis of water supply data is 
completed sufficiently in advance of mining could be approved to 
provide data that isn't affected by mining. PADEP's proposed 
modification of 25 Pa. Code 89.145a(a)(1), removes the requirement that 
premining surveys be conducted prior to mining advancing within 1000 
feet of a water supply and replaces it with a requirement that the 
premining survey be conducted prior to the time a water supply is 
susceptible to mining-related effects. PADEP maintains that this makes 
its program no less effective than the Federal requirements.
    As an additional means of complying with the OSM guidance, PADEP 
proposes to apply the requirements of 25 Pa. Code 89.34 (relating to 
hydrology), 25 Pa. Code 89.35 (relating to prediction of hydrologic 
consequences), and 25 Pa. Code 89.36 (relating to protection of the 
hydrologic balance) to ensure that appropriate drinking, domestic and 
residential water supplies are sampled to adequately determine the 
hydrologic consequences at large and to identify those water supplies 
that may be adversely affected. Collectively, PADEP states that these 
information gathering requirements correspond to Federal counterpart 
requirements in 30 CFR 784.14(b)(1) and (e). PADEP asserts that the 
sample information collected and submitted with the application as 
baseline information satisfies the requirement for identifying the 
samples that will be collected at the time of permit application in 
accordance with OSM's March 1999 letters. PADEP asserts that the 
proposed language, ``premining surveys shall be conducted prior to the 
time a water supply is susceptible to mining related effects,'' 
satisfies OSM's March 9, 1999, letters' requirement that the State 
identify the samples that can be collected at a time closer to when 
mining will occur. In addition, PADEP contends that it satisfies the 
requirement that the surveys be completed ``sufficiently in advance of 
mining to avoid any adverse effects to the water supply.''
    In this submission, PADEP asserts that the determination made under 
25 Pa. Code 89.35 together with the samples collected during the 
baseline information collection effort and the presubsidence survey 
process provide the information required by 30 CFR 784.20(a)(3); a 
survey of the drinking domestic and residential water supplies that may 
be adversely affected.
    In addition, PADEP maintains that its new language that ``premining 
surveys shall be conducted prior to the time a water supply is 
susceptible to mining related effects' satisfies OSM's March 9, 1999, 
requirement that the State demonstrate through the program amendment 
process that the delayed analyses would be completed sufficiently in 
advance of mining to avoid any adverse effects to the water supply.
    In this submission, PADEP asserts that the proposed changes to 25 
Pa. Code 89.145a, in combination with its proposal to gather 
appropriate premining information using the provisions of 25 Pa. Code 
sections 89.34, 89.35 and 89.36, will make Pennsylvania's premining 
survey requirements no less effective than the Federal requirements.
    PADEP's Proposed Resolution: In this submission, Pennsylvania is 
proposing the following changes to 25 Pa. Code 89.145a(a)(1):

    89.145a. Water supply replacement: performance standards.
    (a) Water supply surveys.
    (1) The operator shall conduct a premining survey and may 
conduct a postmining survey of the quantity and quality of all water 
supplies within the permit and adjacent areas, except when the 
landowner denies the operator access to the site to conduct a survey 
and the operator has complied with the notice procedure in this 
section. Premining surveys shall be conducted prior to the time a 
water supply is susceptible to mining-related effects. Survey 
information shall include the following information to the extent 
that it can be collected without excessive inconvenience to the 
landowner:
    (i) The location and type of water supply.
    (ii) The existing and reasonably foreseeable uses of the water 
supply.
    (iii) The chemical and physical characteristics of the water, 
including, at a minimum, total dissolved solids or specific 
conductance corrected to 25[deg]C, pH, total iron, total manganese, 
hardness, total coliform, acidity, alkalinity and sulfates. An 
operator who obtains water samples in a premining or

[[Page 55127]]

postmining survey shall utilize a certified laboratory to analyze 
the samples.
    (iv) The quantity of the water.
    (v) The physical description of the water supply, including the 
depth and diameter of the well, length of casing and description of 
the treatment and distribution systems.
    (vi) Hydrogeologic data such as the static water level and yield 
determination.
* * * * *

    Regulation at 30 CFR 938.16(rrrrr). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.145a(b) to require the ``prompt'' restoration or 
replacement of water supplies and to clarify, if necessary, that the 
phrase ``satisfy the water user's needs and the demands of any 
reasonably foreseeable uses'' is consistent with the actual use and the 
reasonably foreseeable use of the supply, regardless of whether the 
current owner has demonstrated plans for the use.
    Discussion: Regarding the issue of prompt restoration/replacement, 
OSM determined that in the December 27, 2001, final rule, that 
Pennsylvania's regulations on water supply restoration and replacement 
do not specify that operators must fulfill their obligations in a 
``prompt'' manner. OSM found that the absence of this standard made 
Pennsylvania's water supply replacement provisions less effective than 
those in section 720(a)(2) of SMCRA and 30 CFR 817.41(j). The Federal 
statute and regulations require permittees to promptly replace 
drinking, domestic or residential water supplies affected by 
underground mining operations.
    In this submission, PADEP has stated that it is appropriate for 
operators to fulfill their water supply restoration and replacement 
obligations as promptly as possible to minimize inconvenience to 
landowners and to limit the amount of liability that may accrue from 
unresolved water supply claims. PADEP has reviewed the applicable 
provisions of BMSLCA and stated that it found nothing that would 
interfere with requirements for prompt restoration or replacement. 
PADEP, therefore, proposes to address OSM's concern by amending 25 Pa. 
Code 89.145a(b) to incorporate a requirement for ``prompt'' action.
    Regarding reasonably foreseeable uses, in the December Rule, OSM 
expressed concern about Pennsylvania's requirement that permanently 
restored or replacement water supplies must be adequate to serve the 
``reasonably foreseeable uses'' of the original water supply. OSM 
observed that 25 Pa. Code 89.145a(b) provides that a restored or 
replacement water supply must be adequate to serve the landowner's 
premining uses or any reasonably foreseeable uses, implying that an 
operator may select from one of two options. OSM also noted that 25 Pa. 
Code 89.145a(f)(3) addresses the ``reasonably foreseeable use'' 
standard using slightly different language--i.e., ``the water user's 
needs and the demands of any reasonably foreseeable uses.'' Finally, 
OSM noted a letter in which PADEP described ``reasonably foreseeable 
uses'' as ``any foreseeable uses the landowner or water user had 
intended to develop.'' OSM clarified that Pennsylvania's program must 
address all reasonably foreseeable uses and that the scope of this term 
cannot be limited to the documented plans of the current landowner.
    In this submission, PADEP decided to address OSM's concern by 
amending 25 Pa. Code 89.145a(b) to require that restored or replacement 
water supplies must be adequate to serve the premining uses of the 
water supply and any reasonably foreseeable uses of the water supply. 
PADEP also affirms that it will not limit its application of the phrase 
``reasonably foreseeable uses'' to include only those uses that can be 
documented by the landowner. PADEP will act to ensure that 
consideration is given to all drinking, domestic and residential uses 
that are reasonably foreseeable and within the capacity of the 
premining water supply.
    PADEP asserts that these proposed changes make Pennsylvania's water 
supply replacement requirements no less effective than Federal 
counterpart requirements.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
amend 25 Pa. Code 89.145a(b). The amended language reads as follows:

    89.145a. Water supply replacement: performance standards.
* * * * *
    (b) Restoration or replacement of water supplies. When 
underground mining activities conducted on or after August 21, 1994, 
affect a public or private water supply by contamination, diminution 
or interruption, the operator shall promptly restore or replace the 
affected water supply with a permanent alternate source which 
adequately serves the premining uses of the water supply and any 
reasonably foreseeable uses of the water supply. The operator shall 
be relieved of any responsibility under The Bituminous Mine 
Subsidence and Land Conservation Act (52 P. S. sections 1406.1-
1406.21) to restore or replace a water supply if the operator 
demonstrates that one of the provisions of 25 Pa. Code 89.152 
(relating to water supply replacement: relief from responsibility) 
relieves the operator of further responsibility. This subsection 
does not apply to water supplies affected by underground mining 
activities which are covered by Chapter 87 (relating to surface 
mining of coal).
* * * * *

    Regulation at 30 CFR 938.16(sssss). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.145a(e)(1) to assure the prompt supply of temporary 
water to all landowners whose water supplies have been affected by 
underground mining operations regardless of whether the water supplies 
are within or outside of the area of presumptive liability.
    Discussion: Section 25 Pa. Code 89.145a(e)(1) provides that:

    If the affected water supply is within the rebuttable 
presumption area and the rebuttable presumption applies and the 
landowner or water user is without a readily available alternate 
source, the operator shall provide a temporary water supply within 
24 hours of being contacted by the landowner or water supply user or 
the Department, which ever occurs first.

    In the December 27, 2001, final rule, OSM found this regulation to 
be less effective than Federal regulations that require the prompt 
provision of temporary water in all cases where EPAct water supplies 
are affected by underground mining operations with no limiting 
conditions. OSM observed that 25 Pa. Code 89.145a(e) did not provide 
for the prompt provision of temporary water in cases where the affected 
water supply was outside the rebuttable presumption area or cases where 
the operator rebutted the presumption of liability by demonstrating 
denial of access to perform a premining survey. OSM was also concerned 
that the rebuttal of the presumption in combination with the inability 
of the property owner or PADEP to come forth with premining data could 
relieve an operator of the obligation to provide temporary water.
    PADEP acknowledges that existing 25 Pa. Code 89.145a(e) only 
addresses the provision of temporary water in cases where water supply 
effects are subject to the rebuttable presumption of section 5.2(c) of 
the BMSLCA. Section 89.145(e) reflects the provisions of section 
5.2(a)(2) of the statute, which is similarly focused on situations 
where the rebuttable presumption applies.
    In this submission, PADEP proposes to address OSM's concern by 
amending 25 Pa. Code 89.145a(e) to include a paragraph that 
specifically addresses the provision of temporary water supplies when 
EPAct water supplies are affected by underground mining activities. 
This new requirement will apply regardless of the location of the 
affected water

[[Page 55128]]

supply with respect to the rebuttable presumption area or the 
operator's rebuttal of the presumption of liability. It clarifies an 
operator's obligation to promptly provide temporary water when it 
finds, or when PADEP finds, that effects are due to the operator's 
underground mining and the affected water supply is an EPAct water 
supply.
    PADEP bases this amendment on the statutory provisions of section 
5.1(a)(1) and 5.2(a)(3) of the BMSLCA. Section 5.1(a)(1) establishes 
the basic requirement to restore or replace an affected water supply, 
which PADEP interprets to include the prompt provision of temporary 
water. Section 5.2(a)(3) authorizes PADEP to take action to require 
temporary water in any case where temporary water is not provided 
within 24 hours of the time effects are reported to the operator. PADEP 
notes that the actions authorized by section 5.2(a)(3) are not subject 
to the rebuttable presumption of liability.
    PADEP further affirms that it will apply the requirements of 25 Pa. 
Code 89.34, relating to groundwater inventory information, and 25 Pa. 
Code 89.35, relating to predictions of hydrologic impacts, to ensure 
the collection of premining quality and quantity information for all 
EPAct water supplies that may be affected during the term of the 
permit. PADEP states that this information will be collected at the 
time of permit application or permit renewal, or prior to the time an 
EPAct water supply is susceptible to mining related effects to ensure 
that premining information is available for all EPAct water supplies 
prior to the time of impact. PADEP notes that the data collection 
requirements in 25 Pa. Code 89.34 and 25 Pa. Code 89.35 are equivalent 
to those in 30 CFR 784.14.
    PADEP asserts that the proposed regulatory amendment in combination 
with the proposed expansion of groundwater survey requirements will 
make Pennsylvania's requirements relating to the provision of temporary 
water no less effective than those of the Federal program.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
revise 25 Pa. Code 89.145a(e) in the following manner.

    89.145a. Water supply replacement: performance standards.
    (e) Temporary water supplies.
    (1) If the affected water supply is within the rebuttable 
presumption area and the rebuttable presumption applies and the 
landowner or water user is without a readily available alternate 
source, the operator shall provide a temporary water supply within 
24 hours of being contacted by the landowner or water supply user or 
the Department, whichever occurs first.
    (2) An operator shall promptly provide a temporary water supply 
if the operator or the Department finds that the operator's 
underground mining activities have caused contamination, diminution 
or interruption of an EPAct water supply and the landowner or water 
user is without a readily available alternate source of water. This 
requirement applies regardless of whether the water supply is 
located within or outside the rebuttable presumption area.
* * * * *

    Regulation at 30 CFR 938.16(ttttt). Amendment Required by the 
December 27, 2001, Federal Register Notice: OSM directed Pennsylvania 
to amend 25 Pa. Code 89.145a(e)(2) to require the restoration of water 
quantity in temporary water supplies to the same level as permanent 
water supplies, as noted in 25 Pa. Code 89.145a(f)(3).
    Discussion: Subsection 89.145a(e)(2) requires temporary water 
supplies to meet the requirements of paragraph (f)(2) (relating to the 
quality of replacement water supplies) and to provide a sufficient 
amount of water to meet the water supply user's premining needs. In the 
December 27, 2001, final rule, OSM's concern was that the Pennsylvania 
program would only require temporary water supplies to provide a 
sufficient amount of water necessary to meet the water supply user's 
premining needs and not include reasonably foreseeable needs.
    PADEP proposes to address OSM's requirement by amending former 
paragraph (e)(2), which is paragraph (e)(3) under the current proposal, 
to delete the reference to premining water needs. Amended paragraph 
(e)(3) will require temporary water supplies to meet all needs of an 
affected water user. This will ensure that all of a water user's 
premining and reasonably foreseeable needs are satisfied and will make 
the quantity requirements for temporary water supplies equivalent to 
those for permanently restored or replacement water supplies. In making 
this change, PADEP wishes to clarify that temporary water requirements 
would not extend to needs that exceed the capacity of the premining 
water supply.
    PADEP asserts that the proposed revision to 25 Pa. Code 89.145a(e) 
will satisfy the requirement in 30 CFR 938.16(ttttt).
    PADEP's Proposed Resolution: In this submission, PADEP proposes 
that OSM accept the revision to 25 Pa. Code 89.145a(e)(2) (paragraph 
(3) after preceding revision).

    89.145a. Water supply replacement: performance standards.
* * * * *
    (e) Temporary water supplies.
* * * * *
    (3) The temporary water supply provided under this subsection 
shall meet the requirements of paragraph (f)(2) and provide a 
sufficient amount of water to meet the water supply user's needs.
* * * * *

    Regulation at 30 CFR 938.16 (uuuuu). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to revise 
25 Pa. Code 89.145a(f)(1)(v) to make it clear that cost increases 
associated with the operation and maintenance of a restored or 
replacement water supply may not be passed on to the water user.
    Discussion: As explained in discussions under 30 CFR 938.16(pppp) 
and (ddddd), PADEP proposes to amend 25 Pa. Code 89.145a(f) to address 
OSM's concern. PADEP is proposing amendments to 89.145a(f) to 
specifically address the operation and maintenance costs of EPAct water 
supplies. The amendments require that, in the case of an EPAct water 
supply, the restored or replacement water supply shall cost no more to 
operate and maintain than the previous water supply. The amendments 
further provide that any increased costs associated with the operation 
and maintenance of an EPAct water supply are the responsibility of the 
mine operator. The amendments also allow an operator to satisfy its 
responsibility for increased costs by compensating the landowner or 
water user by a one-time payment in an amount which covers the present 
worth of the increased annual operations and maintenance cost for a 
period agreed to by the operator and the landowner or water user. 
Amended 25 Pa. Code 89.145a(f)(5)(i) mirrors the Federal requirement in 
regard to the operation and maintenance costs of EPAct water supplies.
    The proposed amendments to 25 Pa. Code 89.145a(f) retain the 
allowance of a de minimis cost increase for replacement water supplies 
that are outside the scope of SMCRA and the Federal regulations. The 
retention of this provision preserves Pennsylvania law to the maximum 
extent possible.
    PADEP maintains that the proposed changes to 25 Pa. Code 89.145a(f) 
will make Pennsylvania's provisions relating to the cost of restored 
and replacement water supplies no less effective than Federal 
counterpart provisions and will satisfy the requirement in 30 CFR 
938.16(uuuuu).
    PADEP's Proposed Resolution: PADEP proposes to amend 25 Pa. Code 
89.145a(f) in the following manner:


[[Page 55129]]


    89.145a. Water supply replacement: performance standards.
* * * * *
    (f) Adequacy of permanently restored or replaced water supply. A 
permanently restored or replaced water supply shall include any 
well, spring, municipal water supply system or other supply approved 
by the Department, which meets the criteria for adequacy as follows:
    (1) Reliability, maintenance and control. A restored or replaced 
water supply, at a minimum, shall:
    (i) Be as reliable as the previous water supply.
    (ii) Be as permanent as the previous water supply.
    (iii) Not require excessive maintenance.
    (iv) Provide the owner and the user with as much control and 
accessibility as exercised over the previous water supply.
* * * * *
    (5) Cost to landowner or water user. A restored or replacement 
water supply shall meet the following cost criteria:
    (i) The restored or replacement water supply for an affected 
EPAct water supply shall not cost the landowner or water user more 
to operate and maintain than the previous water supply. Operation 
and maintenance costs of the replacement water supply which exceed 
the operation and maintenance costs of the previous water supply are 
the responsibility of the operator. Upon agreement by the operator 
and the landowner or water user, the obligation to pay such 
operation and maintenance costs may be satisfied by a one-time 
payment in an amount which covers the present worth of the increased 
annual operation and maintenance cost for a period agreed to by the 
operator and the landowner or water user.
    (ii) The restored or replacement water supply for an affected 
water supply, which does not qualify as an EPAct water supply, shall 
not have operation and maintenance costs that exceed those of the 
previous water supply by more than a de minimis cost increase. If 
the operation and maintenance costs of the restored or replacement 
water supply are more than a de minimis cost increase, the operator 
shall provide for the permanent payment of the increased operating 
and maintenance cost of the restored or replacement water supply.
* * * * *

    Regulation at 30 CFR 938.16(vvvvv). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.145a(f)(3)(i) and (ii), if necessary, to ensure that the 
phrase ``satisfy the water user's needs and the demands of any 
reasonably foreseeable uses'' is consistent with the actual use and the 
reasonably foreseeable uses.
    Discussion: OSM's December 27, 2001, final rule conditionally 
approved the Pennsylvania program with regard to the use of the 
``adequate'' standard for water quantity of replacement supplies based 
upon statements made by PADEP during the rulemaking process. OSM 
remained concerned about statements indicating PADEP's intent to limit 
reasonably foreseeable uses to those of the current owner/supply user 
as documented by a plan.
    In this submission, PADEP proposes to address OSM's concern by 
affirming that it will consider all reasonably foreseeable drinking, 
domestic and residential uses when evaluating the adequacy of restored 
EPAct water supplies or replacements for EPAct water supplies. PADEP 
further affirms that evaluations will be based on the location and 
characteristics of the property as well as the apparent and documented 
needs of the current water user. An example cited by PADEP would be a 
situation where one person resided in a three-bedroom house with a 
premining water supply capable of serving the needs of four people. In 
the event of impacts, PADEP stated that it would require a replacement 
water supply capable of serving the needs of four people and that the 
reasonably foreseeable use determination would focus on the property's 
premining capacity to house and provide sufficient water for four 
people. The replacement liability would not be limited by the fact that 
the property had only one resident at the time of impact. In this case, 
PADEP noted that the final determination regarding reasonably 
foreseeable uses could be based on observation alone without the need 
for any specific documentation from the landowner.
    In this submission, PADEP also notes that determinations of 
adequacy will also include consideration of the capacity of the 
premining water supply, including the delivery system. An example 
provided by PADEP would be where two people resided in a four-bedroom 
house with a premining water supply capable of serving only two people. 
In this case, the reasonably foreseeable use determination would 
account for the fact that capacity of the house exceeded the capacity 
of the premining water supply. In this situation, PADEP stated that it 
would require the operator to provide a replacement water supply 
capable of serving two people.
    PADEP notes that 25 Pa. Code 89.145a(a)(1)(ii) requires a mine 
operator to gather information regarding the existing and reasonably 
foreseeable use of a water supply at the time of the premining survey. 
This ensures that mine operators will gather information regarding 
reasonably foreseeable uses prior to affecting a water supply.
    PADEP asserts that this affirmation satisfactorily addresses OSM's 
concern in regard to the reasonably foreseeable use of restored EPAct 
water supplies or replacements for EPAct water supplies. PADEP does, 
however, reserve the authority to require documented plans in cases 
that do not involve EPAct water supplies or agricultural water 
supplies.
    PADEP's Proposed Resolution: In this submission, PADEP is proposing 
that there is no need to amend the regulations. PADEP agrees that 
operators must identify and account for all existing and reasonably 
foreseeable uses of a water supply when providing a replacement; not 
just those of the current owner or those documented in a plan.
    Regulation at 30 CFR 938.16(wwwww). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.146a(c) to the extent the timeframes for PADEP 
investigations are longer than those in Pennsylvania's approved citizen 
complaint procedures.
    Discussion: This issue is discussed under 30 CFR 938.16(kkkk) in 
regard to section 5.2(b) of BMSLCA. Section 5.2(b) was the basis for 
the investigation timeframes in 25 Pa. Code 89.146a(c)(1).
    In this submission, PADEP proposes to revise 25 Pa. Code 89.146a(c) 
to impose on itself an obligation to report water supply problem 
investigations to claimants within 10 days of completing the 
investigation.
    PADEP's Proposed Resolution: See proposed revisions to 25 Pa. Code 
89.146a(c) described under 30 CFR 938.16(kkkk). PADEP maintains that 
this satisfies the required amendment under 30 CFR 938.16(wwwww).
    Regulation at 30 CFR 938.16(xxxxx). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.152(a) to remove paragraph (2), which provides a release 
of liability when water supply impacts are due to underground mining 
activities that took place more than three years prior to the onset of 
water supply problems.
    Discussion: See discussion under 30 CFR 938.16(mmmm).
    PADEP's Proposed Resolution: In this submission, PADEP is not 
proposing any changes in response to 30 CFR 938.16(xxxxx) for reasons 
discussed under 30 CFR 938.16(mmmm).
    Regulation at 30 CFR 938.16(yyyyy). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code 89.152(a) to remove paragraph (4), which provides a release 
of liability when water supply problems are reported more than two 
years after the date of occurrence.

[[Page 55130]]

    Discussion: See discussion under 30 CFR 938.16(jjjj) in regard to 
section 5.1(b) of the BMSLCA. PADEP has agreed to changes that will 
eliminate the two-year statute of limitations on filing claims 
involving EPAct water supplies. These changes will be accomplished 
through amendments to 25 Pa. Code 89.152(a) and through an OSM s action 
superseding section 5.1(b) to the extent it applies to EPAct water 
supplies.
    PADEP's Proposed Resolution: See proposed regulatory amendment and 
OSM supersession action described under 30 CFR 938.16(jjjj). PADEP 
contends that these changes satisfy the required amendment under 30 CFR 
938.16(yyyyy).
    Regulation at 30 CFR 938.16(zzzzz). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to remove 
25 Pa. Code 89.152(a)(5)(i), which provides a release of liability in 
cases where operators have addressed their water supply replacement 
obligations through a property purchase or by compensating a landowner 
for the resultant reduction in fair market value of the affected 
property.
    Discussion: See discussion under 30 CFR 938.16(nnnn), (oooo), 
(qqqq) and (rrrr) regarding compensation in lieu of water supply 
replacement. PADEP has agreed to changes that will limit the conditions 
under which an EPAct water supply claim can result in compensation. 
PADEP proposes to amend 25 Pa. Code 89.152(a) to establish specific 
conditions that must be satisfied in situations where EPAct water 
supplies will not be restored or replaced. In order for the proposed 
regulatory amendments to become effective, PADEP maintains that OSM 
must supersede conflicting provisions in sections 5.2(g) and (h) of the 
BMSLCA.
    PADEP's Proposed Resolution: PADEP proposes to address OSM's 
requirement through amendments to 25 Pa. Code 89.152(a). PADEP also 
asserts that OSM must supersede the provisions of sections 5.2(g) and 
(h) of the BMSLCA to the extent these provisions would prevent PADEP 
from requiring the restoration or replacement of EPAct water supplies. 
These changes are described in detail in the response to 30 CFR 
938.16(nnnn), (oooo), (qqqq) and (rrrr), and PADEP maintains they will 
serve to satisfy the requirement in 30 CFR 938.16(zzzzz), as well. The 
proposal to partially supersede sections 5.2(g) and (h) appears in a 
separate rulemaking in this Federal Register issue.
    Regulation at 30 CFR 938.16(aaaaaa). Amendment Required by December 
27, 2001, Federal Register Notice: OSM required Pennsylvania to amend 
25 Pa. Code 89.152a(5)(ii) to remove that portion of the section 
allowing compensation in lieu of restoration or replacement of affected 
water supplies. Additionally, the amendment must make it clear that 
agreements to replace a water supply or provide for replacement of an 
alternate supply of water must meet the requirements established in the 
Federal definition of ``replacement of water supply'' at 30 CFR 701.5.
    Discussion: See discussion under 30 CFR 938.16(nnnn), (oooo), 
(qqqq) and (rrrr) regarding compensation in lieu of water supply 
replacement.
    PADEP's Proposed Resolution: In this submission, PADEP proposes to 
address OSM's requirement through amendments to 25 Pa. Code 89.152 as 
described in the discussion under 30 CFR 938.16(nnnn), (oooo), (qqqq) 
and (rrrr).
    Regulation at 30 CFR 938.16(bbbbbb). Amendment Required by December 
27, 2001, Federal Register Notice: OSM directed Pennsylvania to amend 
25 Pa. Code sections 89.141(d), 89.141(d)(9), 89.142a(a), 
89.142a(f)(1), 89.142a(f)(2)(i), 89.142a(h)(1), 89.142a(h)(2), 
89.142(a)(i)(1), 89.143a(a), 89.143a(d)(1), 89.143a(d)(2), 
89.143a(d)(3), 89.155(b)(1) and (2) and 89.155(c) to be no less 
stringent than section 720(a) of SMCRA. This amendment required using 
the term ``underground mining operations,'' rather than ``underground 
mining'' as used by PADEP.
    Discussion: In the December 27, 2001, final rule, OSM noted that 
several sections of the regulations implementing Act 54 use the term 
``underground mining'' rather than ``underground mining operations'' as 
used in the Federal regulations. OSM noted that these sections require 
a description of the impacts of underground mining on surface features, 
structures and facilities and provide performance standards to remedy 
those impacts. Section 720(a) of SMCRA requires underground coal mining 
operations to comply with those requirements. The Federal term 
``underground coal mining operations'' is more expansive than 
Pennsylvania's term ``underground mining,'' that is defined in 25 Pa. 
Code 89.5 to be the extraction of coal. The Federal definition of 
underground coal mining activities describes underground operations as 
underground construction, operation and reclamation of shafts, adits, 
underground support facilities, in situ processing, and underground 
mining, hauling, storage and blasting. Thus, in regard to the 
aforementioned regulations, the only activity that must meet the 
environmental requirements of Chapter 89 Subchapter F (relating to 
subsidence control and water supply replacement.) is coal extraction, 
while under SMCRA, all underground operations must meet the 
environmental requirements.
    In this submission, PADEP is proposing to address OSM's concern by 
amending 25 Pa. Code sections 89.141(d), 89.141(d)(9), 89.142a(a), 
89.142a(f)(1), 89.142a(f)(2)(i), 89.142a(h)(1), 89.142a(h)(2), 
89.142a(i)(1), 89.143a(a), 89.143a(d)(1), 89.143a (d)(2), 89.143a(d)(3) 
to incorporate the term ``underground mining operations.'' PADEP 
asserts that these changes will make the respective parts of Chapter 89 
no less effective than Federal counterpart requirements.
    PADEP is, however, proposing to leave 25 Pa. Code sections 
89.155(b)(1) and (2) and 89.155(c) unchanged. These requirements 
pertain to notifications, which operators must provide to overlying 
property owners, utilities and government entities, to inform them of 
planned mining. OSM was concerned that activities such as development 
activities and blasting would not be cause for operators to notify 
these parties. However, PADEP has found that all underground mining 
activities that OSM would be concerned with would be the subject of 
PADEP's notification procedures because these activities are part of 
the process of extraction of coal in an underground mine (see 
definition of the term, ``underground mining'' at 25 Pa. Code 89.5). 
Therefore, property owners, utilities, and political subdivisions would 
be notified of these activities as part of the requirements of 25 Pa. 
Code sections 89.155(b)(1) and (2) and 89.155(c). PADEP contends that 
these requirements do not make Pennsylvania's notification requirements 
any less effective than Federal counterpart requirements. Accordingly 
PADEP argues that there is no need to amend 25 Pa. Code sections 
89.155(b)(1) and (2) or 89.155(c) to incorporate the term ``underground 
mining operations.''
    PADEP's Proposed Resolution: In this submission, PADEP proposes 
that OSM accept the following changes to 25 Pa. Code Chapter 89. (Note 
that section 25 Pa. Code 89.141(d)(9) has been re-designated (d)(11) 
based on other proposed changes. Also note use of term ``operations'' 
in newly proposed 25 Pa. Code 89.141(d)(10)).

    89.141 Subsidence control: application requirements.
* * * * *

[[Page 55131]]

    (d) Subsidence control plan. The permit application shall 
include a subsidence control plan that describes the measures to be 
taken to control subsidence effects from the proposed underground 
mining operations. The plan shall address the area in which 
structures, facilities or features may be materially damaged by mine 
subsidence. At a minimum, the plan shall address all areas within a 
30[deg] angle of draw of underground mining operations which will 
occur during the 5-year term of the permit. The subsidence control 
plan shall include the following information:
* * * * *
    (11) A description of the measures which will be taken to 
maintain the value and foreseeable uses of perennial streams which 
may be impacted by underground mining operations. The description 
shall include a discussion of the effectiveness of the proposed 
measures as related to prior underground mining operations under 
similar conditions.
* * * * *


89.142a.  Subsidence control: performance standards.

    (a) General requirements. Underground mining operations shall be 
planned and conducted in accordance with the following:
* * * * *
    (f) Repair of damage to structures.
    (1) Repair or compensation for damage to certain structures. 
Whenever underground mining operations conducted on or after August 
21, 1994, causes damage to any of the structures listed in 
subparagraphs (i)-(v), the operator responsible for extracting the 
coal shall promptly and fully rehabilitate, restore, replace or 
compensate the owner for material damage to the structures resulting 
from the subsidence unless the operator demonstrates to the 
Department's satisfaction that one of the provisions of 25 Pa. Code 
89.144a (relating to subsidence control: relief from responsibility) 
relieves the operator of responsibility.
* * * * *
    (2) Amount of compensation.
    (i) If, rather than repair the damage, the operator compensates 
the structure owner for damage caused by the operator's underground 
mining operations, the operator shall provide compensation equal to 
the reasonable cost of repairing the structure or, if the structure 
is determined to be irreparably damaged, the compensation shall be 
equal to the reasonable cost of its replacement except for an 
irreparably damaged agricultural structure identified in paragraph 
(1)(iv) or (v) which at the time of damage was being used for a 
different purpose than the purpose for which the structure was 
originally constructed. For such an irreparably damaged agricultural 
structure, the operator may provide for the reasonable cost to 
replace the damaged structure with a structure satisfying the 
functions and purposes served by the damaged structure before the 
damage occurred if the operator can affirmatively prove that the 
structure was being used for a different purpose than the purpose 
for which the structure was originally constructed.
* * * * *
    (g) Protection of utilities.
    (1) Underground mining operations shall be planned and conducted 
in a manner which minimizes damage, destruction or disruption in 
services provided by oil, gas and water wells; oil, gas and coal 
slurry pipelines; rail lines; electric and telephone lines; and 
water and sewerage lines which pass under, over, or through the 
permit area, unless otherwise approved by the owner of the 
facilities and the Department.
* * * * *
    (h) Perennial streams.
    (1) Underground mining operations shall be planned and conducted 
in a manner which maintains the value and reasonably foreseeable 
uses of perennial streams, such as aquatic life; water supply; and 
recreation, as they existed prior to coal extraction beneath 
streams.
    (2) If the Department finds that the underground mining 
operations have adversely affected a perennial stream, the operator 
shall mitigate the adverse effects to the extent technologically and 
economically feasible, and, if necessary, file revised plans or 
other data to demonstrate that future underground mining operations 
will meet the requirements of paragraph (1).
    (i) Prevention of hazards to human safety.
    (1) The Department will suspend underground mining operations 
beneath urbanized areas; cities; towns; and communities and adjacent 
to or beneath industrial or commercial buildings; lined solid and 
hazardous waste disposal areas; major impoundments of 20 acre-feet 
(2.47 hectare-meters) or more; or perennial streams, if the 
operations present an imminent danger to the public.
* * * * *


89.143a.  Subsidence control: procedure for resolution of subsidence 
damage claims.

    (a) The owner of a structure enumerated in 25 Pa. Code 
89.142a(f)(1) (relating to subsidence control: performance 
standards) who believes that underground mining operations caused 
mine subsidence resulting in damage to the structure and who wishes 
to secure repair of the structure or compensation for the damage 
shall provide the operator responsible for the underground mining 
with notification of the damage to the structure.
* * * * *
    (d) Upon receipt of the claim, the Department will send a copy 
of the claim to the operator and conduct an investigation in 
accordance with the following procedure:
    (1) Within 30 days of receipt of the claim, the Department will 
conduct an investigation to determine whether underground mining 
operations caused the subsidence damage to the structure and provide 
the results of its investigation to the property owner and mine 
operator within 10 days of completing the investigation.
    (2) Within 60 days of completion of the investigation, the 
Department will determine, and set forth in writing, whether the 
damage is attributable to subsidence caused by the operator's 
underground mining operations and, if so, the reasonable cost of 
repairing or replacing the damaged structure.
    (3) If the Department finds that the operator's underground 
mining operations caused the damage to the structure, the Department 
will either issue a written order directing the operator to promptly 
compensate the structure owner or issue an order directing the 
operator to promptly repair the damaged structure. The Department 
may extend the time for compliance with the order if the Department 
finds that further damage may occur to the same structure as a 
result of additional subsidence.
* * * * *

    Further, PADEP recommends that OSM accept its explanation that 25 
Pa. Code 89.155(b)(1) and (2) and 89.155(c) are no less effective than 
the Federal regulations and need no modification.
    As noted earlier in this proposed rule, PADEP is proposing several 
amendments to Chapters 86 and 89 that were not specifically required by 
OSM. These changes are summarized below:

Definitions of EPACT Structures and EPACT Water Supplies

    PADEP is proposing to add definitions of the terms ``EPAct 
structures'' and ``EPAct water supplies'' under 25 Pa. Code 89.5 
(relating to definitions). These terms are used in various information 
and performance standards to refer to structures and water supplies 
covered under section 720(a) of SMCRA. The proposed definitions are 
derived from descriptions in section 720(a) of SMCRA and the 
definitions of the terms ``drinking, domestic or residential water 
supply'' and ``occupied residential dwelling and structures related 
thereto'' in 30 CFR 701.5. PADEP maintains that the proposed 
definitions effectively encompass all structures and water supplies 
covered by Federal subsidence damage repair and water supply 
replacement provisions.
    The proposed definitions are as follows:

    89.5. Definitions.
    (a) The following words and terms, when used in this chapter, 
have the following meanings, unless the context clearly indicates 
otherwise:
* * * * *
    EPAct structures--Structures that are subject to repair and 
compensation requirements under section 720(a) of the Federal 
Surface Mining Control and Reclamation Act (30 U.S.C. 1201 et seq.). 
The term includes:
    (a) Noncommercial buildings.
    (ii) Dwellings.
    (iii) Structures adjunct to or used in conjunction with 
dwellings, including, but not limited to, garages; storage sheds and

[[Page 55132]]

barns; greenhouses and related buildings; customer-owned utilities 
and cables; fences and other enclosures; retaining walls; paved or 
improved patios; walks and driveways; septic sewage treatment 
facilities; inground swimming pools, and lot drainage and lawn and 
garden irrigation systems.
    EPA Act water supplies--Water supplies that are subject to 
replacement under section 720(a) of the Federal Surface Mining 
Control and Reclamation Act (30 U.S.C. 1201 et seq.), including 
drinking, domestic or residential water supplies in existence prior 
to the date of permit application. The term includes water received 
from a well or spring and any appurtenant delivery system that 
provides water for direct human consumption or household use. It 
does not include wells and springs that serve only agricultural, 
commercial or industrial enterprises except to the extent the water 
supply is for direct human consumption or human sanitation, or 
domestic use.
* * * * *

Scope of Subsidence Bonds

    PADEP is proposing two changes to its bonding regulations in 
addition to those proposed in response to 30 CFR 938.16(ccccc). These 
changes are intended to clarify that the scope and period of liability 
of subsidence bonds will not change as a result of other regulatory 
amendments proposed in response to the OSM requirements.
    One proposed change is an amendment to 25 Pa. Code 86.151(b)(2) 
(relating to the period of liability of subsidence bonds). This change 
involves replacing the undefined term ``mining and reclamation 
operation'' with ``underground mining operations''--a term defined in 
25 Pa. Code 89.5. This change is intended to avoid confusion over 
whether the final 10-year period of bonded liability starts upon 
completion ``underground mining operations'' or upon completion of 
``underground mining activities.'' This is an important distinction 
since the completion of underground mining operations is marked by the 
reclamation of the last shaft or drift opening, while the completion of 
underground mining activities is marked by the stabilization of the 
post closure mine pool, which usually occurs several years or decades 
after the completion of underground mining operations. The proposed 
amendment ties the start of the final 10-year period to the completion 
of underground mining operations, consistent with section 6(b) of 
BMSLCA.
    Another proposed change is an amendment to 25 Pa. Code 86.152(a) 
(relating to bond adjustments). The proposed amendment adds a provision 
at the end of subsection (a) clarifying that the requirement to 
periodically re-evaluate and adjust bonds is not a basis for extending 
the coverage of subsidence bonds beyond the requirements of sections 5, 
5.4, 5.5, and 5.6 of the BMSLCA. This provision, which is based on 
section 6(b) of BMSLCA, clarifies that subsidence bonds are to be 
evaluated and adjusted based on the projected costs of repairing land 
and structure damage and not on costs arising from other regulatory 
obligations, such as the requirement to perform surface reclamation and 
the requirement to replace affected water supplies.
    PADEP maintains that the proposed amendments will not make 
Pennsylvania's bonding requirements less effective than the Federal 
bonding requirements. As explained in the response to 30 CFR 
938.16(ccccc), Pennsylvania asserts its subsidence bonding requirements 
are as effective as those in 30 CFR 817.121(c)(5) in terms of assuring 
the availability of adequate funds for the repair of EPAct structures 
and land. The proposed changes to 25 Pa. Code 86.151(b)(2) will 
maintain the status quo regarding the period during which subsidence 
bonds must be maintained and will not result in a termination of 
liability prior to the time OSM would terminate jurisdiction over an 
underground mining operation. Further, since PADEP relies on other 
types of financial assurance to ensure the replacement of affected 
water supplies, it maintains there is no need to address these 
liabilities through subsidence bonds.
    The proposed amendments to 25 Pa. Code 86.151(b)(2) and 86.152(a) 
are as follows:

    86.151. Period of liability.
    (a) Liability under bonds posted for a coal surface mining 
activity shall continue for the duration of the mining activities 
and its reclamation as provided in the acts, regulations adopted 
thereunder and the conditions of the permit and for 5 additional 
years after completion of augmented seeding, fertilization, 
irrigation or other work necessary to achieve permanent revegetation 
of the permit area.
    (b) Liability under bonds posted for the surface effects of an 
underground mine, coal preparation activity or other long-term 
facility shall continue for the duration of the mining operation or 
use of the facility, its reclamation as provided in the acts, 
regulations adopted thereunder and the conditions of the permit, and 
for 5 years thereafter, except for:
    (1) The risk of water pollution for which liability under the 
bond shall continue for a period of time after completion of the 
mining and reclamation operation. This period of time will be 
determined by the Department on a case-by-case basis.
    (2) The risk of subsidence from bituminous underground mines for 
which liability under the bond shall continue for 10 years after 
completion of the mining and reclamation operation underground 
mining operations.
    86.152. Bond adjustments.
    (a) The amount of bond required and the terms of the acceptance 
of the applicant's bond will be adjusted by the Department from time 
to time as the area requiring bond coverage is increased or 
decreased, or where the cost of future reclamation changes, or where 
the projected subsidence damage repair liability changes. The 
Department may specify periodic times or set a schedule for 
reevaluating and adjusting the bond amount to fulfill this 
requirement. This requirement shall only be binding upon the 
permittee and does not compel a third party, including surety 
companies, to provide additional bond coverage and does not extend 
the coverage of a subsidence bond beyond the requirements imposed by 
sections 5, 5.4, 5.5, and 5.6 of the Bituminous Mine Subsidence and 
Land Conservation Act.

Description of Features Protected Under 25 Pa. Code 89.142a(c)

    PADEP is proposing to amend 25 Pa. Code 89.142a(c)(1) to make an 
editorial correction. The correction involves changing the term 
``surface features'' to ``features'' in paragraph (1). The term 
``features'' is more appropriate in this instance because it refers to 
both surface water bodies and aquifers enumerated in subparagraphs 
(c)(1)(iv)-(v). Since aquifers are not usually considered surface 
features, it is more appropriate to use the term ``features'' to refer 
to this group. PADEP maintains that the proposed change will not make 
Pennsylvania's regulations less effective than Federal counterpart 
regulations. The proposed amendment to 25 Pa. Code 89.142a(c) is as 
follows:

    89.142a. Subsidence control: performance standards.
* * * * *
    (c) Restrictions on underground mining.
    (1) Unless the subsidence control plan demonstrates that 
subsidence will not cause material damage to, or reduce the 
reasonably foreseeable use of the structures and features listed in 
subparagraph (i)-(v), no underground mining shall be conducted 
beneath or adjacent to:
    (i) Public buildings and facilities.
    (ii) Churches, schools and hospitals.
    (iii) Impoundments with a storage capacity of 20 acre-feet (2.47 
hectare-meters) or more.
    (iv) Bodies of water with a volume of 20 acre-feet (2.47 
hectare-meters) or more.
    (v) Bodies of water or aquifers which serve as significant 
sources to public water supply systems.
* * * * *

Support Facilities Located Underground

    PADEP is proposing to amend the definition of ``underground mining 
operations'' and paragraph (ii) of the definition of ``underground 
mining activities'' to replace the term ``underground support 
facilities'' with

[[Page 55133]]

``support facilities located underground.'' The proposed changes are 
intended to clarify that the term ``underground mining operations'' 
refers only to those operations that take place in the subsurface parts 
of an underground coal mine. These changes will eliminate the 
possibility that ``underground mining operations'' could be construed 
to include operations at a surface support facility, such as a coal 
storage site, bathhouse or mine drainage treatment plant. This change 
is necessary to clarify the scope of the term ``underground mining 
operations'' which will be inserted in many information and performance 
standards in response to OSM requirements. PADEP contends that these 
changes will not make Pennsylvania's definition of ``underground mining 
operations'' less inclusive than the Federal definition (see paragraph 
(b) of the definition of ``underground mining activities'' in 30 CFR 
701.5).
    The proposed changes are as follows:

    86.1. Definitions.
    The following words and terms, when used in this chapter, have 
the following meanings, unless the context clearly indicates 
otherwise:
* * * * *
    Underground mining activities includes the following:
* * * * *
    (ii) Underground operations such as underground construction, 
operation, and reclamation of shafts, adits, support facilities 
located underground, in situ processing, and underground mining, 
hauling, storage and blasting.
* * * * *
    89.5. Definitions.
    (a) The following words and terms, when used in this chapter, 
have the following meanings, unless the context clearly indicates 
otherwise:
* * * * *
    Underground mining activities includes the following:
* * * * *
    (ii) Underground operations such as underground construction, 
operation, and reclamation of shafts, adits, support facilities 
located underground, in situ processing, and underground mining, 
hauling, storage and blasting.
* * * * *
    Underground mining operations--Underground construction, 
operation and reclamation of shafts, adits, support facilities 
located underground, in situ processing and underground mining, 
hauling, storage and blasting.
* * * * *

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Harrisburg Field Office may not 
be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: SATS No. PA-143'' and your name and return address in 
your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Harrisburg Field 
Office at (717) 782-4036.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearings, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on 
October 7, 2003. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard. You do not need to 
attend both public hearings. We will consider all comments received at 
either of the public hearings.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society

[[Page 55134]]

and the environment from the adverse effects of surface coal mining 
operations.'' Section 503(a)(1) of SMCRA requires that State laws 
regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that the Pennsylvania program does 
not regulate surface coal mining and reclamation operations on Indian 
lands. Therefore, changes to the Pennsylvania program have no effect on 
federally-recognized Indian tribes.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local governmental agencies or 
geographic regions; and (c) does not have significant adverse effects 
on competition, employment, investment, productivity, innovation, or 
the ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 5, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-23986 Filed 9-18-03; 12:01 pm]
BILLING CODE 4310-05-P