[Federal Register Volume 69, Number 236 (Thursday, December 9, 2004)]
[Rules and Regulations]
[Pages 71528-71551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26928]



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Part III





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; Final Rules

  Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / 
Rules and Regulations  

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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: Final rule; approval of amendment.

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SUMMARY: We are approving 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 proposed to revise its program at 25 Pa. Code Chapters 86 
and 89 regarding bonding and repair or compensation for damage to 
certain structures caused by subsidence due to underground mining 
operations and for replacement or restoration of water supplies 
impacted by subsidence due to underground mining operations. Through 
our approval of this amendment, we are also removing forty-seven 
required amendments to the Pennsylvania program. We required these 
amendments in a final rule published in the Federal Register on 
December 27, 2001 (66 FR 67010), in which we reviewed changes 
Pennsylvania made to its Bituminous Mine Subsidence and Land 
Conservation Act (BMSLCA) and implementing regulations. Pennsylvania 
revised its program to be consistent with the corresponding Federal 
regulations and SMCRA.

DATES: Effective Dates: December 9, 2004.

FOR FURTHER INFORMATION CONTACT: George Rieger, Director, Pittsburgh 
Field Division, Telephone: (717) 782-4036, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 State 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 in the July 30, 1982, Federal Register (47 FR 33050). You 
can also find later actions concerning Pennsylvania's program and 
program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Submission of the Proposed Amendment

    By letter dated August 27, 2003, the Pennsylvania Department of 
Environmental Protection (PADEP) sent us an amendment to its program 
(Administrative Record No. PA 841.64) under SMCRA (30 U.S.C. 1201 et 
seq.). Pennsylvania sent the amendment in response to the required 
program amendments at 30 CFR 938.16(hhhh) through and including 
(bbbbbb). Pennsylvania is proposing to amend its regulations at 25 Pa. 
Code 86.1, 86.151, 86.152, 89.5, 89.141, 89.142a, 89.143a, 89.144a, 
89.145a, 89.146a, and 89.152 to satisfy the required amendments. 
Pennsylvania is also proposing additional regulation changes that 
relate to, but are not specifically required by, our required 
amendments. By letter dated September 3, 2003, PADEP revised its 
response to the required amendment at 30 CFR 938.16(ccccc) and its 
ancillary change to bonding requirements (Administrative Record No. PA 
841.65).
    We announced receipt of the proposed amendment in the September 22, 
2003, Federal Register (68 FR 55106). In the same document, we opened 
the public comment period and provided the public with an opportunity 
to speak at scheduled public hearings on the amendment's adequacy. We 
held public hearings in Indiana, Pennsylvania, on October 15, 2003, at 
3 p.m. and at 7 p.m. and in Washington, Pennsylvania, on October 16, 
2003, at 3 p.m. and at 7 p.m. We entered a transcript of the public 
hearings into the administrative record (the Indiana hearings under 
Administrative Record Nos. PA 841.91 and PA 841.92, and the Washington 
hearings under Administrative Record Nos. PA 841.88 and PA 841.89). In 
a separate proposed rulemaking on the same day, we asked for comments 
on a proposed action to supersede certain sections of BMSLCA (68 FR 
55134). The public comment period for both proposed rulemakings ended 
on October 22, 2003. During the hearings, we received 19 distinct sets 
of comments through written and oral testimony, from the following:
    Industry--Pennsylvania Coal Association (PCA), Private Citizens--
eight homeowners, and Businesses--The Hothouse Floral Company.
    Citizen/Environmental Groups: Citizens for Pennsylvania's Future a/
k/a PennFuture, Concern About Water Loss due to Mining (CAWLM), Sierra 
Club/Tri-States Citizen Network, Citizen Network, Mountain Watershed 
Association, Ten Mile Protection Network, Wheeling Creek Watershed 
Conservancy, and Citizen's Coal Council.
    Testimony by legal counsel for State Representative William 
DeWeese.
    In addition, we received further written comments from the PCA, the 
National Mining Association (NMA), the U. S. Environmental Protection 
Agency, Department of Labor, Mine Safety and Health Administration, 
several private citizens, and from two environmental groups (CAWLM & 
Tri-States Citizen Network).

III. OSM's Findings

    Following are the findings we made under SMCRA and the Federal 
regulations at 30 CFR 732.15 and 732.17 concerning approval of 
Pennsylvania's amendment to its program and removal of our required 
amendments. In this final rule, we are approving the proposed changes 
to Pennsylvania's regulatory program as noted below. Additionally, in a 
separate final rule published in today's Federal Register we are 
superseding portions of BMSLCA. Approval of PADEP's proposed 
regulations along with the determinations made in the December 27, 
2001, final rule and the superseding of portions of BMSLCA, have 
enabled us to remove the required amendments at 30 CFR 938.16(hhhh) 
through (bbbbbb). For easy cross-reference to our final rule of 
December 27, 2001, our findings below are arranged in the alphabetical 
order of the December 27, 2001, required amendments. Please see our 
December 27, 2001, final rule (66 FR 67010) for a full discussion of 
OSM's rationale for requiring these amendments to Pennsylvania's 
program. The December 27, 2001, final rule is made a part of the record 
for this action as well.
    In the December 27, 2001, final rule, the required amendments from 
30 CFR

[[Page 71529]]

938.16(hhhh) to 30 CFR 938.16(ccccc) describe changes we required 
Pennsylvania to make to BMSLCA, while the required amendments from 30 
CFR 938.16(ddddd) to 30 CFR 938.16(bbbbbb) describe changes we required 
Pennsylvania to make to its regulations. In some cases, the changes 
Pennsylvania proposed to its regulations in the August 27, 2003, letter 
were sufficient to remove amendments we required to BMSLCA. The 
specific sections of BMSLCA where this occurred are noted below.
    Finally, in its August 27, 2003, letter, PADEP also proposed 
several amendments to Chapters 86 and 89 that we did not specifically 
require in our December 27, 2001, final rule. These changes are 
discussed in a separate section following our discussion on the 
required amendments.
    30 CFR 938.16(hhhh). Reference relating to bonding requirements.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Section 5(b) of BMSLCA to delete the reference to Section 
6(a) of BMSLCA, which no longer exists, and replace it with a reference 
to 6(b).
    For a full explanation of PADEP's rationale in proposing removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55107). We accept PADEP's explanation that the error in cross 
referencing sections of BMSLCA will not interfere with PADEP's 
authority to require a bond or make its bonding requirements any less 
effective than the Federal bonding requirements. As a result, we are 
removing this required amendment and approving language in 5(b) of 
BMSLCA that was previously not approved.
    30 CFR 938.16(iiii). Prompt replacement of water supplies.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Section 5.1(a)(1) of BMSLCA to require the prompt 
replacement of all water supplies affected by underground mining 
operations.
    For a full explanation of PADEP's proposed action and argument for 
removal of this required amendment, see the September 22, 2003, 
proposed rule (68 FR at 55107). PADEP proposed to amend its regulation 
at 25 Pa. Code 89.145a(b) to require the prompt replacement of water 
supplies. The proposed addition of the word ``prompt'' to 
Pennsylvania's regulations makes those regulations no less stringent 
than Section 720(a)(2) of SMCRA regarding prompt replacement of water 
supplies. Since BMSLCA was silent on when a water supply had to be 
replaced, the addition of the word ``prompt'' to Pennsylvania's 
regulations allows the removal of this required amendment to BMSLCA. 
Therefore, we are approving the regulatory change at 25 Pa. Code 
89.145a(b) (see 30 CFR 938.16(rrrrr) below) and removing this required 
amendment.
    30 CFR 938.16(jjjj). Two-year reporting limit on water supply 
effects.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove Section 5.1(b) of BMSLCA, which establishes a two-
year limit on filing water supply damage claims. We 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).
    For a full explanation of PADEP's proposed action and argument for 
removal of this required amendment, see the September 22, 2003, 
proposed rule (68 FR at 55107). PADEP proposed to amend its regulation 
at 25 Pa. Code 89.152(a) to remove the two year filing deadline with 
regard to claims involving water supplies protected under the Federal 
regulations. As discussed infra, we have determined that the changes to 
25 Pa. Code 89.152(a) are no less effective than the Federal 
regulations regarding replacement of water supplies. However Section 
5.1(b) of BMSLCA conflicts with this revised regulation in that it 
limits an operator's obligation to replace water supplies if the 
landowner's claim is not made within two years of the date of impact 
and, as initially determined in the December 27, 2001, final rule, is 
inconsistent with SMCRA and the Federal regulations. In a separate 
notice published in today's Federal Register, we are superseding 
Section 5.1(b) of BMSLCA to the extent that it would limit an 
operator's liability to restore or replace a water supply covered under 
Section 720 of SMCRA. Based on our approval of PADEP's proposed changes 
to its regulations at 25 Pa. Code 89.152(a) (see 30 CFR 938.16(yyyyy) 
below), coupled with the determinations made in the December 27, 2001, 
final rule and the superseding of Section 5.1(b) of BMSLCA as described 
above, we are removing this required amendment.
    30 CFR 938.16(kkkk). Water supply replacement: promptness of 
actions.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove the clause in Section 5.2(b)(2) of BMSLCA, which 
acknowledges that water supply claims may exist for periods up to three 
years prior to PADEP enforcement action because this does not provide 
for prompt replacement under Section 720(a)(2) of SMCRA.
    For a full explanation of PADEP's rationale and revised regulation 
proposed for removal of this required amendment, see the September 22, 
2003, proposed rule (68 FR at 55108-09). PADEP stated that the language 
at Section 5.2(b)(2) of BMSLCA does not prevent it from taking 
enforcement action sooner than three years after the date of impact and 
that the three years is the outer limit for permanent water 
restoration/replacement. Coupled with PADEP's proposed change to its 
regulations at 25 Pa. Code 89.145a(b) requiring prompt replacement of 
water supplies, we have determined that the portion of the required 
amendment concerning the three year period that can elapse before 
enforcement action is taken can be removed. As a result, we are 
approving the regulatory change to 25 Pa. Code 89.145(a)(b) (see 30 CFR 
938.16(rrrrr) below), approving language in Section 5.2(b)(2) of BMSLCA 
that was previously not approved, and we are removing this required 
amendment.
    In a matter unrelated to this required amendment, but pertaining to 
Section 5.2(b)(2) of BMSLCA, we approved, in the December 27, 2001, 
final rule, the portion of Section 5.2(b)(2) that requires PADEP to 
investigate claims within 10 days of notification and to make a 
determination within 45 days of whether an operator affected a water 
supply to the extent that these time frames were consistent with, or 
more timely than, Pennsylvania's citizen complaint procedures (66 FR at 
67016). PADEP's proposed change to 25 Pa. Code 89.146a(c), which we 
approved below, requires it to notify citizens of its determination 
within 10 days of completing its investigation. This regulation ensures 
that the Pennsylvania program is no less effective than the Federal 
requirements at 30 CFR 842.12 regarding time frames for citizen 
complaint procedures (see 30 CFR 938.16(wwwww) below).
    30 CFR 938.16(llll). Denial of access for premining survey and its 
effect on affirmative proof of water supply contamination, diminution 
or interruption.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment 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

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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 BMSLCA. We took this 
action because limiting proof to premining baseline data is less 
effective than 30 CFR 817.121(j).
    For a full explanation of PADEP's rationale for why the required 
amendment should be removed, see the September 22, 2003, proposed rule 
(68 FR at 55109). PADEP has stated that Section 5.2(d) of BMSLCA will 
not interfere with its ability to use evidence other than ``premining 
baseline information'' and provided an interpretation of its statute 
and regulations that it will allow the use of all evidence in cases of 
water supply impacts. Generally, courts grant deference to an agency's 
interpretation of a statute that the agency implements. We have 
determined that PADEP's interpretation is reasonable. Based on this 
interpretation, we have determined that it is no less effective than 
the Federal regulations that require replacement of all drinking, 
domestic and residential water supplies regardless of whether premining 
baseline data is provided. As a result, we are removing this required 
amendment and approving language in Section 5.2(d) of BMSLCA that was 
previously not approved.
    30 CFR 938.16(mmmm). Relief of liability for water supply 
replacement when the adverse effect occurs more than three years after 
mining activity.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to delete Section 5.2(e)(2) of BMSLCA which provides a 
release of liability in cases where water supply impacts occur more 
than three years after mining activity because it eliminated an 
operator's liability, leaving no recourse for landowners.
    After lengthy deliberations with PADEP concerning this required 
amendment, we determined that this section and its implementing 
regulation at 25 Pa. Code 89.152(a)(2) are no less effective than the 
Federal regulations because: (1) The application of the three year 
limit will not result in release of liability prior to the time that 
the Federal regulations would provide for jurisdiction to terminate; 
(2) PADEP can reassert jurisdiction if there is fraud, collusion or 
misrepresentation of a material fact; and (3) the three year limit does 
not affect a citizen's right to sue pursuant to Section 520 of SMCRA.
    For a full discussion of OSM's considerations and the explanation 
of PADEP's rationale proposing removal of this required amendment, see 
the September 22, 2003, proposed rule (68 FR at 55109). PADEP maintains 
that the start of the three year period is at the time of the last 
mining activity. PADEP proposes to amend its definition of underground 
mining activities at 25 Pa. Code 86.1 and 89.5 to include post closure 
mine pool maintenance. Water supplies are usually affected at the time 
of subsidence or upon the advance of mine workings into or adjacent to 
aquifers. After the mining is completed, the development of the post 
closure mine pool is the only mining-related factor that is likely to 
affect adjacent water supplies. The mine pool may take years to reach a 
stable elevation and require six months to a year to verify 
stabilization. Thus, the three year period will not start until PADEP 
is convinced that the mine pool has stabilized. The Federal regulations 
providing for termination of jurisdiction are based on the satisfaction 
of reclamation standards and not necessarily on the date of pool 
stabilization. Thus, the Federal regulations would normally allow a 
State to terminate jurisdiction before pool stabilization.
    PADEP has also demonstrated (as discussed fully in the proposed 
rule) that it has the authority to require an operator to replace a 
water supply if an operator uses erroneous or fraudulent information 
because under Section 5.2(e) of BMSLCA such an operator has failed to 
meet the affirmative defense requirements. Lastly, Section 13 of BMSLCA 
created the right of citizens to sue. PADEP interprets Section 13 as 
not being affected by the three-year limit described in Section 
5.2(e)(2). We have determined that PADEP's interpretation is 
reasonable. Accordingly, based on PADEP amending its definition of 
``underground mining activities,'' and based on its reasonable 
interpretations of its statute and regulations that there is recourse 
for the landowner and there is a way to require the replacement of 
water supplies after the three years, we find these provisions for an 
operator's liability for water supply replacement to be no less 
effective than the Federal regulations. As a result, we are removing 
this required amendment and approving language in Section 5.2(e)(2) of 
BMSLCA that was previously not approved.
    30 CFR 938.16(nnnn), (oooo), (qqqq), (rrrr). Compensation in lieu 
of water supply replacement.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment 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.
    As previously noted in the December 27, 2001, final rule, Section 
720 of SMCRA and the Federal rules unequivocally require replacement of 
a water supply. See, 66 FR at 67018. PADEP proposed to amend 25 Pa. 
Code 89.152 to provide for situations when an operator may not be 
required to restore or replace a water supply protected under Section 
720 of SMCRA and for situations when an operator will not be required 
to restore or replace a water supply outside the protections of Section 
720 of SMCRA. The proposed changes to the regulations addressing those 
water supplies protected under SMCRA do not provide for compensation in 
lieu of replacement of water supplies. Instead, these changes provide 
that in the rare circumstances that PADEP determines that a water 
supply meeting the requirements of 25 Pa. Code 89.145a(f) cannot be 
replaced, a payment for the fair market value of the property, or a 
payment for the difference between the fair market value prior to and 
after mining, can be made to the landowner.
    However, the change to 25 Pa. Code 89.152 conflicts with portions 
of Sections 5.2(g) and (h) of BMSLCA because the statute limits PADEP's 
authority to require replacement of an Energy Policy Act (EPAct) water 
supply when instead an operator wants to compensate an owner. For a 
full explanation of PADEP's rationale for proposed removal of this 
required amendment, see the September 22, 2003, proposed rule (68 FR at 
55111). While the Federal standards do not have a provision identical 
to Pennsylvania's regulations, these provisions are not inconsistent 
with the requirements of the Federal regulations authorizing 
compensation for property damage because the loss of an EPAct water 
supply would be considered material damage to the structure, which 
under 30 CFR 817.121(c)(5), would require the operator to compensate 
the owner for reduction in the fair market value of the structure. As a 
result, we are approving the proposed changes to 25 Pa. Code 89.152 
(see 30 CFR 938.16(zzzzz) below). In a separate notice published in 
today's Federal Register, we are superseding Section 5.2(g) of BMSLCA 
to the extent that it would limit an operator's liability to restore or 
replace a water supply covered under Section 720 of SMCRA and we are 
superseding Section 5.2(h) of BMSLCA to the extent it would preclude 
Pennsylvania from

[[Page 71531]]

requiring the restoration or replacement of a water supply covered 
under Section 720 of SMCRA. Because of the changes Pennsylvania is 
proposing to its regulations at 25 Pa. Code 89.152 coupled with the 
determinations made in the December 27, 2001, final rule and the 
superseding of Sections 5.2(g) and (h) of BMSLCA as noted above, we are 
removing these required amendments and approving language in Section 
5.3 of BMSLCA that was previously not approved.
    30 CFR 938.16(pppp). Permanent alternate source definition.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove the phrase, ``and of reasonable cost'' from 
Subsection 5.2(i) of BMSLCA because it could be interpreted to limit an 
operator's obligation to replace an affected water supply and could 
result in the landowner/water user incurring additional costs. 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.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55113). PADEP proposes to modify its regulations at 25 Pa. Code 
89.145a(f) to require that a restored or replaced drinking, domestic or 
residential water supply cannot cost the water user more to operate and 
maintain than the previous water supply. We approved this proposed 
regulation (see 30 CFR 938.16(uuuuu) below). Additionally, PADEP has 
provided an interpretation of its program that the ``reasonable cost'' 
standard in Section 5.2(i) of BMSLCA refers to the right of a property 
owner to a restored or replaced water supply that can be operated or 
maintained at a reasonable cost. This provision is not applied as a 
basis for relieving an operator of the liability for restoration or 
replacement of affected water supplies. With this interpretation and 
our approval of the proposed change to the regulation at 25 Pa. Code 
89.145a(f), we have determined that Pennsylvania's program is no less 
effective than the Federal requirements for replacement of water 
supplies. Therefore, we are removing this required amendment and 
approving language in 5.2(i) of BMSLCA that was previously not 
approved.
    30 CFR 938.16(ssss). Other remedies available under State law.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to make it clear that Section 5.3(c) of BMSLCA, relating to 
other remedies under State law, cannot negate or provide less 
protection than EPAct.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55114). PADEP provided an interpretation of this section that a 
landowner has full rights under BMSLCA while seeking remedies under 
other laws. We accept PADEP's interpretation of this portion of the 
statute. Because landowners or water supply users have the full 
protection of BMSLCA even while pursuing other avenues of redress, we 
have determined that this portion of the program is no less effective 
than the Federal regulations and we are removing this required 
amendment.
    30 CFR 938.16(tttt). Prompt repair or compensation for structure 
damage.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Section 5.4 of BMSLCA to require prompt repairs or 
compensation in cases involving damage to EPAct structures (i.e., 
noncommercial buildings, dwellings and structures related thereto).
    For a full explanation of PADEP's rationale for removal of this 
required amendment, see the September 22, 2003, proposed rule (68 FR at 
55114). PADEP proposes to amend its regulation at 25 Pa. Code 
89.142a(f)(1) to provide for the prompt repair of subsidence damage 
from underground mining operations or for the prompt compensation 
thereof (see 30 CFR 938.16(kkkkk) below). We have determined that this 
proposed regulation is no less effective than the Federal regulations 
requiring prompt replacement or compensation and we approved it. Since 
BMSLCA was silent on when a damaged structure had to be repaired, the 
addition of the word ``prompt'' to Pennsylvania's regulations at 25 Pa. 
Code 89.142a(f)(1) makes the Pennsylvania statute and regulations no 
less stringent than Section 720(a)(1) of SMCRA regarding prompt repair 
of, or compensation for, material damage to certain structures. 
Therefore, we are removing this required amendment.
    30 CFR 938.16(uuuu). Repair of dwellings and permanently affixed 
appurtenant structures or improvements.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Section 5.4(a)(3) of 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.''
    The Pennsylvania statute provided for the repair or compensation of 
improvements to structures damaged by underground mining operations so 
long as the improvements were in place at the time of the permit 
application or at the time of the permit renewal and were completely 
within the boundary of the mine. The Federal definition of ``occupied 
residential dwelling and structures related thereto'' includes 
improvements related to EPAct structures. The Federal rules at 30 CFR 
817.121(c)(2) protect such improvements if they were in place at the 
time of mining. There is no Federal requirement that the improvement be 
completely within the boundary of the mine. For a full explanation of 
PADEP's rationale for proposed removal of this required amendment, see 
the September 22, 2003, proposed rule (68 FR at 55115). In response to 
this amendment, PADEP proposes to amend its regulation at 25 Pa. Code 
89.142a(f)(1)(iii) to remove the phrase corresponding to the above 
phrase from BMSLCA. We approved this proposed regulation (see 30 CFR 
938.16(lllll) below).
    However, the change to 25 Pa. Code 89.142a(f)(1)(iii) conflicts 
with portions of Section 5.4(a)(3) of BMSLCA which still contain the 
above language. In a separate notice published in today's Federal 
Register, we are superseding the portion of Section 5.4(a)(3) of BMSLCA 
that states, ``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,'' to the extent it would limit an operator's liability for 
restoration of, or compensation for subsidence damages to, structures 
protected under Section 720 of SMCRA that were in existence at the time 
of mining. Because of our approval of Pennsylvania's proposed 
regulation at 25 Pa. Code 89.142a(f)(1)(iii), coupled with the 
determinations made in the December 27, 2001, final rule and the 
superseding of Section 5.4(a)(3) of BMSLCA as noted above, we have 
determined that the changes to Pennsylvania's program are no less 
effective than the Federal regulations and we are removing this 
required amendment.
    30 CFR 938.16(vvvv). Relief of liability for structure damage 
repair or compensation when an operator is

[[Page 71532]]

denied access to conduct a premining or postmining survey.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove Section 5.4(c) of BMSLCA, which waives an 
operator's liability for damage repair and compensation in cases where 
landowners deny access for premining or postmining surveys because 30 
CFR 817.121(c)(2) does not provide an exception to operator's liability 
for subsidence damage to EPAct structures.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55115). PADEP has proposed to revise its regulation at 25 Pa. 
Code 89.144a to provide that an operator's relief of liability for 
damage repair or compensation does not apply to EPAct structures if the 
landowner or PADEP can show by a preponderance of evidence that the 
damage resulted from the operator's underground mining operations (see 
30 CFR 938.16(ppppp) below). We have determined that this proposed 
change in the regulations is no less effective than the Federal 
provisions relating to damage repair or compensation and we approved 
it. However, the change to 25 Pa. Code 89.144a conflicts with portions 
of Section 5.4(c) of BMSLCA which still contain this language. In a 
separate notice published in today's Federal Register, we are 
superseding Section 5.4(c) of BMSLCA to the extent it limits an 
operator's liability for repair of, or compensation for, subsidence 
damage to a structure covered under Section 720 of SMCRA. Based on 
Pennsylvania's proposed changes to 25 Pa. Code 89.144a, coupled with 
the determinations made in the December 27, 2001, final rule and the 
superseding of Section 5.4(c) of BMSLCA as described above, we are 
removing this required amendment.
    30 CFR 938.16(wwww). Repair or compensation for damaged structures.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Section 5.5(a) of 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,'' not just for damage caused by the removal of coal. 
Section 720(a) of SMCRA requires prompt repair or compensation for 
material damage caused by underground coal mining operations, which 
includes many activities. We made a similar requirement at 30 CFR 
938.16(bbbbbb) with regard to the implementing regulations at 25 Pa. 
Code 89.143a(a).
    For a full discussion of the various terms and an explanation of 
PADEP's rationale for proposed removal of this required amendment, see 
the September 22, 2003, proposed rule (68 FR at 55116). PADEP proposes 
to amend its regulation at 25 Pa. Code 89.143a(a) to change the term 
``underground mining'' to ``underground mining operations.'' PADEP 
noted that the terms ``underground mining'' and ``underground mining 
operations'' are not defined in the BMSLCA and are used interchangeably 
in the statute (for example, the term ``underground mining operations'' 
used in Section 5.4 of BMSLCA and the term ``underground mining'' used 
in Section 5.5 of BMSLCA). Since these and related sections concern the 
same subject matter, repair and/or compensation of damage to 
structures, PADEP's regulatory definitions and its interpretation of 
its statute and regulations must be examined to satisfy this issue. We 
have determined that Pennsylvania's proposed change to 25 Pa. Code 
89.143a(a) is no less effective than the Federal regulations regarding 
repair or compensation of structures damaged by underground mining 
operations since its definition of underground mining operations is 
consistent with that portion of the Federal definition of underground 
mining activities regarding underground operations. As a result, we are 
approving it (see 30 CFR 938.16(bbbbbb)) below. Further, we have 
determined that Pennsylvania's interpretation that BMSLCA is not 
limiting in this regard is a reasonable one and therefore we are 
removing this required amendment.
    30 CFR 938.16(xxxx). Structure Damage--Six-month negotiation period 
and two-year claim filing period.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove Section 5.5(b) of 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 PADEP. It also 
establishes a two-year period for filing subsidence damage claims. We 
required the amendment because the language could delay enforcement 
action by PADEP; did not provide for prompt repair or compensation as 
required by SMCRA; and was inconsistent with SMCRA which does not 
restrict the time for filing a damage claim. We made a similar 
requirement at 30 CFR 938.16(nnnnn) with regard to the implementing 
regulations at 25 Pa. Code 89.143a(c).
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55116). To address this required amendment, PADEP has stated that 
under Section 9 of BMSLCA, it has the broad authority to issue 
enforcement orders prior to the six month negotiation period in order 
to carry out the enforcement provisions of BMSLCA. Additionally, PADEP 
amended its proposed regulation at 25 Pa. Code 89.143a(c) to eliminate 
the requirement that a landowner wait six months to file a claim and to 
eliminate the requirement that a landowner file a damage claim within 
two years with regard to structures protected under Federal 
regulations. We have determined that these changes make this regulation 
no less effective than the Federal regulations regarding damage repair 
or compensation and we approved them (see 30 CFR 938.16(nnnnn) below). 
We have determined that PADEP's interpretation of Section 9 of BMSLCA 
is reasonable since it removed the above noted regulatory language, 
making it clear that the six month time period does not limit earlier 
repair or compensation for protected structures.
    However, the proposed change to 25 Pa. Code 89.143a(c) conflicts 
with portions of Section 5.5(b) of BMSLCA because the statute has the 
mandatory language that all claims shall be filed within two years. In 
a separate notice published in today's Federal Register, we are 
superseding the portion of Section 5.5(b) of BMSLCA that reads, ``All 
claims under this subsection shall be filed within two years of the 
date damage to the building occurred'' to the extent that it would 
limit an operator's liability for restoration of, or compensation for, 
subsidence damages to a structure covered under Section 720 of SMCRA. 
Based on our approval of PADEP's proposed amendment to 25 Pa. Code 
89.143a(c), coupled with the determinations made in the December 27, 
2001, final rule and the superseding of Section 5.5(b) of BMSLCA as 
noted above, we are removing this required amendment.
    30 CFR 938.16(yyyy). Investigation and orders for repair of damaged 
structures.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Section 5.5(c) of BMSLCA to do three things: (1) Remove 
the following phrase relating to timeframes for enforcement orders, ``* 
* * within six months or a longer

[[Page 71533]]

period if the department finds that the occurrence of subsidence or 
subsequent damage may occur to the same building as a result of 
mining.'' We made a similar requirement in 30 CFR 938.16(ooooo) with 
regard to the implementing regulations at 25 Pa. Code 89.143a(d); (2) 
ensure that written damage determinations made by PADEP will take into 
account subsidence due to underground coal mining operations as 
required by SMCRA (we 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)); and (3) ensure that the timeframes for 
investigation of claims of subsidence damage are consistent with 
Federal procedures for response to citizen complaints.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55117). With regard to the first requirement, PADEP stated that 
the language in 5.5(c) of BMSLCA reads that the compliance period is 
``within six months'' and not a fixed six-month compliance period so 
that it has the ability to require shorter compliance period than six 
months. To support this interpretation, PADEP proposes to remove the 
six month period from its regulation at 25 Pa. Code 89.143a(d)(3) and 
proposes to add provisions relating to the prompt performance of 
actions required by enforcement orders. We approved these proposed 
changes (see 30 CFR 938.16(ooooo) below).
    With regard to the second requirement, PADEP proposes to amend 25 
Pa. Code 89.143a(d) to replace the term, ``underground mining,'' with 
``underground mining operations.'' We approved this proposed change 
(see 30 CFR 938.16(bbbbbb) below).
    With regard to the third requirement, PADEP proposes to amend 25 
Pa. Code 89.143a(d)(1) to require claimant notification by PADEP within 
ten days of PADEP completing its investigation of the subsidence damage 
claim. We have determined that PADEP's interpretation of BMSLCA's 
``within six months'' language in conjunction with the proposed 
regulatory change allows PADEP to issue orders requiring prompt 
compliance is no less effective than the Federal regulations which 
require abatement of notices of violations (i.e., enforcement orders) 
within ninety days, including extensions, unless one of the exceptions 
of 30 CFR 843.12(c) applies. As a result, we are approving 
Pennsylvania's proposed regulation at 25 Pa. Code 89.143a(d)(1). As 
discussed earlier with required amendment 30 CFR 938.16(wwww), we have 
determined that PADEP's interpretation and regulation change replacing 
the term ``underground mining'' with ``underground mining operations,'' 
no less effective than the Federal regulations.
    Finally, with regard to the proposed changes made to the 
regulations concerning investigation and notification of subsidence 
damages claims, we determined that since Section 5.5(c) of BMSLCA was 
ambiguous on the maximum time that could elapse between the completion 
of the investigation and the time the complainant was notified of the 
results, the revised regulation is no less effective than the Federal 
citizen complaint rule which requires notification within ten days of 
completion of the inspection. As a result, we are removing this 
required amendment.
    30 CFR 938.16(zzzz). Issuance of orders and payment of escrow when 
an operator fails to repair or compensate a landowner for subsidence 
damage.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove the following phrase from Section 5.5(f) of 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.''
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55118). PADEP addressed this amendment through an amendment to 
its regulation at 25 Pa. Code 89.143a(d) (see 30 CFR 938.16(ooooo) 
below). As discussed in the prior finding, the proposed amendment to 25 
Pa. Code 89.143a(d) clarifies the requirement for prompt compliance, 
conditions time extensions for abatement on a determination that 
additional subsidence is expected to occur, and removes all references 
to ``six month'' compliance periods. PADEP's proposed change to 25 Pa. 
Code 89.143a(d) is no less effective than the Federal regulations.
    We also agree with PADEP's explanation that the escrow provision 
found in Section 5.5(e) of BMSLCA eliminates our concern that a 
perfected appeal could stay an enforcement action. An enforcement 
action would require the operator to repair or compensate for material 
damage to a protected structure. Payment into the escrow account by the 
operator is comparable to the Federal regulation of 30 CFR 817.21(c)(2) 
which requires repair or compensation, thus eliminating the need for 
enforcement action. Based on the proposed changes to 25 Pa. Code 
89.143a(d) and PADEP's explanation, we are removing this required 
amendment and approving language in 5.5(f) of BMSLCA that was 
previously not approved.
    30 CFR 938.16(aaaaa). ``Pre-1994'' agreements relating to 
subsidence damage repair or compensation.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Section 5.6(c) of BMSLCA to remove provisions relating to 
agreements executed between April 27, 1966, and August 21, 1994.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55119). PADEP indicated that the agreements referenced under this 
section are no longer a cause for concern. PADEP also indicated that it 
believes that these agreements no longer play a role in the settlement 
of structure damage cases in Pennsylvania and observed that it has 
encountered no situation where repairs or compensation were denied on 
the basis of Section 5.6(c) of BMSLCA. On this basis, PADEP asserts 
that there is no need to amend Section 5.6(c) of BMSLCA. In the 
proposed rule, we requested that the public provide copies of these 
agreements if they exist. While we received unsigned copies of such 
agreements, we received none that were signed. As a result, we have 
determined that PADEP's assertion that such agreements do not influence 
structure damage claims is accurate. As a result, we are removing this 
required amendment and approving language in Section 5.6(c) of BMSLCA 
that was previously not approved.
    30 CFR 938.16(bbbbb): Reference to ``pre-1994'' agreements.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to ensure that the provisions of Section 5.6(d) of BMSLCA 
reflect our decision in regard to 30 CFR 938.16(aaaaa).
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55120). Because of our decision with regard to removing the 
required amendment at 30 CFR 938.16(aaaaa), we have determined that 
there is no need for this required amendment and we are removing it.
    30 CFR 938.16(ccccc). Bonding for subsidence damage and water 
replacement.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Section 6 of BMSLCA to

[[Page 71534]]

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. Specifically, we were concerned that the Pennsylvania program did 
not provide for an adjustment of the bond after subsidence damage 
occurs or did not require a bond or a bond increase for damage to land 
or water resources.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55120). PADEP indicated that it requires operators to post a 
subsidence bond prior to mining and that the amount of this bond is 
based on 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, PADEP has proposed to amend 
25 Pa. Code 86.152(a) to change discretionary bond adjustments to 
mandatory adjustments. We have approved this proposed change (see the 
discussion for 25 Pa. Code 86.152(a) in the section titled, ``Ancillary 
Changes'' below). Lastly, for damaged water resources, PADEP asserts 
that a bond for damaged water resources is unnecessary because its 
existing regulation at 25 Pa. Code 86.168 requires a permittee to have 
liability insurance for the loss or diminution in quantity and quality 
of public or private sources of waters. The Federal regulations at 30 
CFR 800.14 allow liability insurance in lieu of a performance bond. We 
have determined that the proposed changes PADEP is making to its 
regulation at 25 Pa. Code 86.152(a), and its liability insurance 
provisions of 25 Pa. Code 86.168, coupled with PADEP's explanation of 
its subsidence bond program make its proposed regulations no less 
effective than the corresponding Federal regulations at 30 CFR 
817.121(c)(5). As a result, we are removing this required amendment.
    30 CFR 938.16(ddddd). Definition of de minimis cost increase.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove the definition of de minimis cost increase, which 
appears in 25 Pa. Code 89.5 (relating to definitions) because it could 
allow some increased operation and maintenance costs be passed on to 
the landowner or water user.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55120). PADEP proposed to eliminate the de minimis cost increase 
concept for water supplies protected under the Federal regulations in 
its regulation at 25 Pa. Code 89.145a(f). Pennsylvania's proposed 
regulation requires that the restored or replaced EPAct water supply 
shall not cost the landowner or the water user more to operate and 
maintain than the cost of the previous water supply. Elimination of de 
minimis cost increases for drinking, domestic, and residential water 
supplies is no less effective than the Federal regulations which 
require no increased operating and maintenance costs of replacement 
water supplies be passed on to landowners and water users. Therefore, 
we are removing this required amendment.
    30 CFR 938.16(eeeee). Definition of fair market value.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to delete the definition of ``fair market value'' from 25 Pa. 
Code 89.5.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55121). PADEP noted that the term ``fair market value'' is used 
in cases where it has determined that affected water supplies cannot be 
replaced. We approved this concept under the required amendments at 30 
CFR 938.16(nnnn), (oooo), (qqqq), and (rrrr). We determined that this 
definition will be necessary in providing compensation in those cases 
where a water supply cannot be replaced and the owner is compensated 
for the reduction of the fair market value of the structure due to the 
water loss. As a result, we are removing this required amendment and 
approving this definition.
    30 CFR 938.16(fffff). Definition of permanently affixed appurtenant 
structures.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove the phrase ``securely attached to the land 
surface'' in the definition of ``permanently affixed appurtenant 
structures'' in 25 Pa. Code 89.5 because the Federal definition of 
``occupied residential dwelling and structures related thereto'' does 
not require such structures be securely attached to the land.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55121). To address this requirement, 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 definition ``permanently affixed 
appurtenant structures'' from 25 Pa. Code 89.5 and by adding a 
description to 25 Pa. Code 89.142a(f)(1)(iii) that draws on the Federal 
definition of occupied residential dwellings and structures related 
thereto at 30 CFR 701.5, which does not have such restrictions. We have 
determined that these revised regulations are no less effective than 
the Federal requirements and as a result, we are approving them and 
removing this required amendment.
    30 CFR 938.16(ggggg). Subsidence control plan--prevention of 
material damage to EPAct structures.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55122). PADEP proposes extensive changes to 25 Pa. Code 89.141(d) 
and 89.142a(d) to address our 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). SMCRA and the Federal regulation at 30 CFR 
784.20(b) require the permittee to describe preventative measures for 
EPAct structures. Since Pennsylvania's amended regulations will require 
preventative measures for EPAct structures, we have determined that the 
proposed change to 25 Pa. Code

[[Page 71535]]

89.141(d) and 89.142a(d) with regard to structures protected under 
SMCRA are no less effective than the corresponding Federal regulations. 
As a result, we are approving the proposed regulations and removing 
this required amendment.
    30 CFR 938.16(hhhhh). Subsidence control plan--minimizing material 
damage to EPAct structures.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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 because 89.141(d)(6) addressed irreparable damage but did 
not address situations where material damage may occur for EPAct 
structures as required by 30 CFR 784.20(b)(5) and (b)(7).
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55123). In response to our 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 proposed 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. 
We have determined that these proposed changes require, as does the 
Federal rule at 30 CFR 784.20(b)(7), a description of the methods to be 
used in areas of planned subsidence to minimize material damage for 
EPAct structures, unless the owner consented to the material damage or 
the costs of the minimization methods would exceed the cost of repairs 
and the material damage does not threaten health or safety. Thus, the 
proposed changes make Pennsylvania's regulations no less effective than 
the Federal requirements and we are approving them and removing this 
required amendment.
    30 CFR 938.16(iiiii). Measures to minimize material damage.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 89.142a(c)(3) to make it no less effective 
than 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.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55123). PADEP proposes to amend 25 Pa. Code 89.142a(c)(3) to 
incorporate the provisions we requested by giving PADEP the discretion 
to suspend mining. We have determined that these proposed changes will 
make Pennsylvania's program no less effective than the Federal rule at 
30 CFR 817.121(e) 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 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. We also note that the structures or features addressed by this 
proposed regulation are the same as those addressed by 30 CFR 
817.121(d) and (e). As a result, we are approving the proposed 
regulation and removing this required amendment.
    30 CFR 938.16(jjjjj). Prevention of material damage.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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 because this 
subsection only addressed situations where irreparable damage was 
predicted but did not address situations where material damage may 
occur for EPAct structures, as provided at 30 CFR 817.121(a).
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55124). 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. We have determined that this proposed 
change makes Pennsylvania's regulations no less effective than the 
Federal regulations in regard to the protection of EPAct structures. As 
a result, we are approving the proposed regulation and removing this 
required amendment.
    30 CFR 938.16(kkkkk). Prompt repair or compensation for structure 
damage.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 89.142a(f)(1) to secure prompt repair or 
compensation to landowners. We made a similar requirement at 
938.16(tttt) in regard to Section 5.4 of BMSLCA (see discussion under 
30 CFR 938.16(tttt).
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55124). PADEP proposes to amend 25 Pa. Code 89.142a(f)(1) as 
shown under 30 CFR 938.16(tttt). Since Pennsylvania has proposed to add 
the word ``prompt'' to its regulations, we have determined that 25 Pa. 
Code 89.142(a)(f)(1) is no less effective than the Federal rule at 30 
CFR 817.121(c) which requires the prompt repair or compensation to 
landowners for material damage caused by subsidence and we are 
approving it. Since these proposed changes also satisfy the required 
amendment, we are removing it.
    30 CFR 938.16(lllll). Repair of dwellings and permanently affixed 
appurtenant structures or improvements.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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.'' This 
section is similar to Section 5.4(a)(3) of BMSLCA. See discussion under 
30 CFR 938.16(uuuu).
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55124). PADEP proposes to amend 25 Pa. Code 89.142a(f)(1)(iii) as 
shown in the proposed resolution to 30 CFR 938.16(uuuu). Since the 
proposed regulation no longer has the limitations that were not in the 
Federal regulation at 30 CFR 817.121(c)(5), we have determined that 
this regulation is no less effective than the Federal rule and we are 
approving it and removing the required amendment. Also, we are 
superseding the language in Section 5.4(a)(3) of BMSLCA which serves as

[[Page 71536]]

the basis for this condition in a separate notice published in today's 
Federal Register.
    30 CFR 938.16(mmmmm). Protection of utilities from underground 
mining activities.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 89.142a(g)(1) to require all underground 
mining activities, not just underground mining, be conducted in a 
manner consistent with 30 CFR 817.180. The term ``underground mining 
activities'' is defined at 30 CFR 701.5 to include surface operations 
incident to underground coal extraction or in situ processing and 
underground operations.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55124). 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.'' We have determined 
that this change, in combination with the protections already provided 
under existing 25 Pa. Code 89.67 (relating to surface mining activities 
associated with an underground mine and various utilities), is no less 
effective than the Federal regulations at 30 CFR 817.180 and we are 
approving it. As a result, we are removing this required amendment.
    30 CFR 938.16(nnnnn). Statute of limitations on damage repair or 
compensation--claims must be filed with PADEP within two years of 
damage.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment 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, we required Pennsylvania to submit a proposed amendment 
to remove the phrase, ``within 2 years of the date damage to the 
structure occurred.'' We made a similar requirement at 30 CFR 
938.16(xxxx) with regard to Section 5.5(b) of BMSLCA.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55125). Since 25 Pa. Code 89.143a(c) is substantively identical 
to Section 5.5(b) of BMSLCA, please see our discussion and proposed 
resolution under 30 CFR 938.16(xxxx), including proposed amendments to 
25 Pa. Code 89.143a(c) and OSM supersession described under 30 CFR 
938.16(xxxx). As noted in 30 CFR 938.16(xxxx), we have determined that 
the changes proposed by PADEP are no less effective than the Federal 
regulations and we are approving them. As a result, we are removing 
this required amendment.
    30 CFR 938.16(ooooo). Investigation and orders for repair of 
damaged structures.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment 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.'' We made a similar requirement at 30 CFR 
938.16(yyyy) with regard to Section 5.5(c) of BMSLCA.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55125). This regulation is similar to 5.5(c) of BMSLCA. PADEP's 
proposal to amend 25 Pa. Code 89.143a(d)(3) as shown under 30 CFR 
938.16(yyyy) is no less effective than the Federal regulations and we 
are approving it. The proposed regulation also satisfies the required 
amendment at 30 CFR 938.16(ooooo). See also the discussion under 30 CFR 
938.16(yyyy) above for more information. We are removing this required 
amendment.
    30 CFR 938.16(ppppp). Relief of liability for structure damage 
repair or compensation when operator is denied access to conduct a 
premining or postmining survey.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove 25 Pa. Code 89.144(a)(1), which provides a waiver 
of liability that is inconsistent with Federal regulations. This is the 
same issue that was raised under 30 CFR 938.16(vvvv) in regard to 
Section 5.4(c) of BMSLCA.
    PADEP has proposed changes to 25 Pa Code 89.144(a)(1) that restrict 
this waiver so it cannot be raised in cases involving EPAct structures. 
See the proposed regulatory amendment and our supersession described 
under 30 CFR 938.16(vvvv). These amended regulations are no less 
effective than the Federal regulations and we are approving them. This 
approval satisfies the required amendment under 30 CFR 938.16(ppppp) 
and, as a result, we are removing it.
    30 CFR 938.16(qqqqq). Water supply surveys--various issues.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 89.145a(a)(1) to: (1) Make it clear that the 
requirement that survey information need only be obtained to the extent 
that it can be collected without extraordinary efforts or the 
expenditure of excessive sums of money is only applicable as it applies 
to inconveniencing landowners; (2) remove the provision that allows for 
water supply surveys to be delayed until mining advances within 1,000 
feet of a water supply; and (3) require permittees to submit 
information required by 25 Pa. Code 89.145a(a)(1)(i)-(vi) that is 
necessary to meet the provision of 30 CFR 784.20(a)(3) at the time of 
application for all existing drinking, domestic, or residential water 
supplies.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55125). With regard to the first concern, PADEP proposes to amend 
25 Pa. Code 89.145a(a)(1) to replace the condition relating to 
``extraordinary efforts or excessive sums of money'' with a condition 
relating to ``excessive inconvenience to the landowner,'' so it is 
clear that a survey will be conducted unless the landowner is 
excessively inconvenienced. This is no less effective than 30 CFR 
784.20 that requires the permit applicant to conduct a water supply 
survey at its own expense.
    With regard to the second and third concerns, state regulatory 
authorities must demonstrate that baseline data at the time of the 
permit application is adequate to develop the Probable Hydrologic 
Consequences and Cumulative Hydrologic Investigation Assessment 
documents and that any delayed water supply surveys would be completed 
before any adverse effect to the water supply. PADEP proposed 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 the water supply is susceptible to mining-related effects. 
The determination of when surveys must be completed will be made 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. We agree that the approach that 
Pennsylvania proposes is reasonable since the environment of the 
individual permit will dictate when the

[[Page 71537]]

water supply will be susceptible to the effects of mining and that the 
entity best equipped to deal with this determination is PADEP since it 
has available the most unbiased experience and information.
    With regard to the third concern, 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 as effective as Federal counterpart 
requirements. We agree that the baseline data information submitted 
with the permit application (25 Pa. Code 89.34-36 hydrologic 
information) and the changes to 25 Pa. Code 89.145a are adequate to 
develop the probable hydrologic consequences and cumulative hydrologic 
impacts of the area. Thus, we have determined that PADEP's proposed 
changes to 25 Pa. Code 89.145a and its interpretation to be no less 
effective than the Federal regulations and we are approving it. These 
actions satisfy the required amendment under 30 CFR 938.16(qqqqq) and 
as a result, we are removing it.
    30 CFR 938.16(rrrrr). Water supply replacement--promptness of 
action and reasonably foreseeable uses.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 89.145a(b) to require the ``prompt'' 
restoration or replacement of water supplies and to clarify, if 
necessary, that the language at 25 Pa. Code 89.145a(b) 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.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55127). PADEP proposes to address our concern regarding prompt 
restoration by amending 25 Pa. Code 89.145a(b) to incorporate a 
requirement for ``prompt'' action. The ``prompt'' issue was raised 
under 30 CFR 938.16(iiii) in regard to Section 5.1(a)(1) of BMSLCA. See 
the proposed regulatory amendment described under 30 CFR 938.16(vvvv) 
for further discussion. PADEP decided to address our concern regarding 
reasonably foreseeable uses of water supplies 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. This is consistent 
with what we did when we approved the Federal definition of 
``replacement of water supply,'' where we rejected a recommendation 
that replacement be limited to actual use. See 60 FR at 16726. Thus, we 
have determined that these changes are no less effective than the 
Federal regulations regarding the prompt replacement of water supplies 
and the standards for replacement of a water supply to its premining 
quantity and quality. As a result, we are approving the proposed 
regulations and removing this required amendment.
    30 CFR 938.16(sssss). Water supply replacement--prompt provision of 
temporary water.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55127). PADEP proposes to address our 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 supply with 
respect to the rebuttable presumption area or the operator's rebuttal 
of the presumption of liability. We have determined that the proposed 
change to 25 Pa. Code 89.145a(e) is no less effective than the Federal 
regulations regarding replacement of water supplies because 30 CFR 
701.5 (replacement of water supply) and 30 CFR 817.41(j) require the 
prompt replacement of a protected water supply on both a temporary and 
permanent basis, regardless of where the water supply is located. As a 
result, we are approving this proposed regulation and removing this 
required amendment.
    30 CFR 938.16(ttttt). Quality and quantity of temporary water 
supplies.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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) because 
the definition of ``replacement of water supply'' at 30 CFR 701.5 
applies to both permanent and temporary water supplies.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55128). PADEP proposes to address OSM's requirement by amending 
former paragraph 25 Pa. Code 89.145(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, not just the water user's 
premining needs. We have determined that this change makes the 
Pennsylvania program no less effective than the Federal regulations and 
we are approving it. As a result, we are removing this required 
amendment.
    30 CFR 938.16 (uuuuu). De minimis cost increase.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment 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.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55128). As explained in discussions under 30 CFR 938.16(pppp) and 
(ddddd), PADEP proposes to amend 25 Pa. Code 89.145a(f) to address our 
concern. 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. As discussed 
earlier, this change is no less effective than the Federal regulations 
regarding replacement of water supplies and we are approving it. As a 
result, we are removing the required amendment at 30 CFR 938.16(uuuuu).
    30 CFR 938.16(vvvvv). Reasonably foreseeable use--adequate 
quantity.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55129). PADEP has addressed our concerns by affirming that it 
will consider all reasonably foreseeable drinking, domestic and 
residential uses when evaluating the adequacy of

[[Page 71538]]

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. Pennsylvania's 
interpretation of its program makes it no less effective than the 
Federal regulations at 30 CFR 701.5 regarding replacement of water 
supplies. As a result, we are removing the required amendment at 30 CFR 
938.16(vvvvv).
    30 CFR 938.16(wwwww). Water supply problems--investigation time 
frames.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 89.146a(c) to the extent the time frames for 
PADEP investigations are longer than those in Pennsylvania's approved 
citizen complaint procedures. This issue is discussed under 30 CFR 
938.16(kkkk) in regard to Section 5.2(b)(2) of BMSLCA.
    For a complete discussion, please see our finding for Section 
5.2(b)(2) of BMSLCA under 30 CFR 938.16(kkkk). Section 5.2(b)(2) was 
the basis for the investigation timeframes in 25 Pa. Code 
89.146a(c)(1). PADEP's proposal 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 is no less effective than the Federal regulations at 30 
CFR 842.12 regarding time frames for investigations of citizen 
complaints. As a result, we are approving this proposed regulation and 
removing this required amendment.
    30 CFR 938.16(xxxxx). Relief of liability for water supply 
replacement when the adverse effect occurs more than three years after 
the mining activity.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 89.152(a) to remove paragraph (2), which 
provides for relief of an operator's 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. See our 
discussion under 30 CFR 938.16(mmmm) in regard to 5.2(e)(2) of BMSLCA. 
Since we determined that Pennsylvania's amended definition of 
``underground mining activities'' is no less effective than the Federal 
regulations and PADEP's interpretation reasonable, for the reasons 
given in our discussion at 30 CFR 938.16(mmmm), we are removing this 
required amendment.
    30 CFR 938.16(yyyyy). Two-year reporting limit on water supply 
effects.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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 because SMCRA does not 
set a time limit for when an EPAct water supply claim must be made. For 
further information see our discussion under 30 CFR 938.16(jjjj) in 
regard to Section 5.1(b) of BMSLCA.
    PADEP has proposed 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 our action superseding Section 5.1(b) of BMSLCA 
to the extent it applies to EPAct water supplies. We have determined 
that Pennsylvania's proposed regulation at 25 Pa. Code 89.152(a) is no 
less effective than the Federal regulations and we are approving it and 
we are removing this required amendment.
    30 CFR 938.16(zzzzz). Compensation in lieu of water supply 
replacement.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to remove 25 Pa. Code 89.152(a)(5)(i), which provides for 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. See our discussion under 30 CFR 
938.16(nnnn), (oooo), (qqqq) and (rrrr) regarding compensation in lieu 
of water supply replacement.
    PADEP has proposed 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 may not be restored or replaced. We have superseded 
conflicting provisions in Sections 5.2(g) and (h) of BMSLCA in a 
separate rulemaking published in today's Federal Register. For these 
reasons discussed under 30 CFR 938.16(nnnn), (oooo), (qqqq) and (rrrr), 
we have determined that the proposed changes to 25 Pa. Code 89.152(a) 
are not inconsistent with the Federal regulations and we are approving 
them. We have also determined that approval of these proposed 
regulations satisfies the requirements of the required amendment at 30 
CFR 938.16(zzzzz) and therefore, we are removing it.
    30 CFR 938.16(aaaaaa). Compensation in lieu of water supply 
replacement--relief of liability under voluntary agreements.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 89.152(a)(5)(ii) to delete the provision 
allowing compensation in lieu of restoration or replacement of affected 
water supplies. We further directed that the amendment must clarify 
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. See discussion under 30 CFR 938.16(nnnn), (oooo), (qqqq) and 
(rrrr) regarding compensation in lieu of water supply replacement.
    PADEP addressed the required amendment through proposed amendments 
to 25 Pa. Code 89.152 as described in the discussion under 30 CFR 
938.16(nnnn), (oooo), (qqqq) and (rrrr). As noted earlier, we have 
determined that the proposed changes to 25 Pa. Code 89.152(a) are not 
inconsistent with the Federal regulations. We are therefore approving 
these changes and are removing the required amendment at 30 CFR 
938.16(aaaaaa).
    30 CFR 938.16(bbbbbb). ``Underground mining operations'' and 
notification of mining.
    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 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 which uses the term 
``underground mining operations'' and includes more activities than 
just the extraction of coal.
    For a full explanation of PADEP's rationale for proposed removal of 
this required amendment, see the September 22, 2003, proposed rule (68 
FR at 55130). PADEP proposes to address our 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.'' These changes will make the 
respective parts of Chapter 89 no less stringent than SMCRA and we are 
approving them.

[[Page 71539]]

    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 operators must provide to overlying property 
owners, utilities and government entities, to inform them of planned 
mining. OSM was initially concerned that activities such as development 
activities and blasting would not be cause for operators to notify 
these parties. However, PADEP interprets its definition of 
``underground mining'' at 25 Pa. Code 89.5 to include these activities 
as a part of the process of extraction of coal in an underground mine. 
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). Based on 
Pennsylvania's interpretation of its definition, which we find 
reasonable, these requirements make Pennsylvania's notification 
requirements no less effective than Federal counterpart requirements. 
Accordingly, we agree 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'' and, based on PADEP's interpretation, 
we are approving the term ``underground mining'' in 25 Pa. Code 
89.155(b)(1) and (2) and 89.155(c). Therefore, we are removing this 
required amendment.

Ancillary Changes

    PADEP is proposing some changes to 25 Pa. Code Chapters 86 and 89 
that we did not specifically require in the final rule of December 27, 
2001, but relate to requirements imposed by the rule. These changes are 
as follows:
25 Pa. Code 86.1, Definitions and 25 Pa. Code 89.5, Definitions
    PADEP is proposing to amend the definition of ``underground mining 
activities'' in 25 Pa. Code 86.1 and 89.5 to use the phrase ``support 
facilities located underground'' rather than ``underground support 
facilities.'' The change was made to insure that surface facilities in 
support of underground operations are not included in the term 
underground mining operations. This change only clarifies the existing 
regulation and does not limit the coverage of the definition. 
Therefore, we have determined that this change is no less effective 
than part (b) of the Federal definition of ``underground mining 
activities'' at 30 CFR 701.5 which also refers to underground 
operations. PADEP made a similar change to the definition of 
underground mining operations at 25 Pa. Code 89.5. We also have 
determined that this change to be no less effective than the Federal 
regulations and we are approving it.
25 Pa. Code 86.151(b)(2)
    PADEP is also proposing a change to its bonding regulations at 25 
Pa. Code 86.151(b)(2) in addition to the changes to that section 
proposed to satisfy the required amendment at 30 CFR 938.16(ccccc). 
This proposed change clarifies the requirement to maintain subsidence 
bonds for a period of 10 years after the completion of underground 
mining operations. The former language defined the period of liability 
as extending for 10 years from completion of ``mining and reclamation 
operations''--a vague term that was not defined in the BMSLCA or 
Pennsylvania's regulations. PADEP explained that this change will 
maintain the status quo regarding the liability period for subsidence 
bonds. It also avoids confusion over whether the 10 year period extends 
from completion of underground mining operations or underground mining 
activities, which includes surface operations that would not be subject 
to the subsidence bond. We have determined that the proposed amendment 
does not constitute a substantive change in Pennsylvania's approved 
program and is not inconsistent with Section 509 of SMCRA which 
requires liability for the duration of the mining and reclamation.
25 Pa. Code 86.152(a)
    PADEP's proposed change to 25 Pa. Code 86.152(a) adds a provision 
to the end of the subsection clarifying that the requirement to 
periodically reevaluate and adjust the 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 BMSLCA. PADEP has indicated that this 
provision will ensure that subsidence bonds will be recalculated on the 
basis of projected costs of repairing land and structure damage and not 
on the basis of other obligations such as water supply replacement. We 
have determined that PADEP's methods of assuring that water supplies 
will be replaced through liability insurance are no less effective than 
the Federal regulations (see 30 CFR 938.16(ccccc) above). As a result, 
we have determined that the clarification to this section about its 
subsidence bond does not alter that finding and is no less effective 
than 30 CFR 817.121(c)(5) and we are approving it.
25 Pa. Code 89.5, Definitions
    PADEP is proposing to add definitions of the terms ``EPAct 
structures'' and ``EPAct water supplies'' under the definitions at 25 
Pa. Code 89.5. In its August 27, 2003, submission to us, PADEP noted 
that these 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 is adding these 
definitions to identify structures and water supplies covered under the 
Federal program and to distinguish them from structures and water 
supplies covered exclusively under State law. PADEP's definition of 
EPAct structures refers to structures that are subject to repair and 
compensation requirements under Section 720(a) of SMCRA. PADEP's 
definition of EPAct water supplies refers to water supplies that are 
subject to replacement under Section 720(a) of SMCRA. Additionally, 
PADEP notes that 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, are not included. PADEP has used these terms throughout its 
proposed regulations to differentiate structures and water supplies 
covered under the Federal regulations from those covered exclusively 
under the State program. We have determined that these definitions will 
ensure that Pennsylvania will protect all water supplies and structures 
protected under the Federal regulations. Therefore, these definitions 
are no less effective than the Federal provisions and we are approving 
them.
25 Pa. Code 89.142a(c)
    PADEP made an editorial correction in this section changing the 
term ``surface features'' to ``features listed in subparagraph (i)-
(v).'' This section provides that unless the subsidence control plan 
demonstrates that subsidence will not cause material damage to or 
reduce the reasonably foreseeable use of the features listed in this 
section, underground mining will be prohibited beneath or adjacent to 
the features. PADEP made this change to assure that features such as 
aquifers, which are not surface features, are protected under this 
section. We have determined that this clarification will not limit the 
types of features to be protected under this provision and therefore, 
it is no less effective than the Federal regulations at 30 CFR 
817.121(d) which also refers to features and we are approving it.

[[Page 71540]]

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. PA 841.68), and received responses from the groups noted 
above in ``Section II. Submission of the Proposed Amendment.'' On the 
same day that we published and opened the comment periods for this 
amendment, we published and opened the comment period for the proposed 
action to supersede certain sections of BMSLCA. Comments were submitted 
for both proposed actions. While the comments were considered for both 
actions, some comments are more appropriately addressed in the final 
rule superseding portions of BMSLCA than in this rule. The comments and 
our response to those comments are incorporated by reference into this 
rule. For a full discussion of PCA's comments on Sections 5.4(a)(3), 
5.4(c), and 5.2(g) and (h) of BMSLCA and Tri-States' comments on 
Sections 5.2(g) and (h), please see the final rule (PA-141-FOR) 
superseding portions of BMSLCA that is published in today's Federal 
Register.
    This rulemaking generated a wide range of comments in writing and 
at public hearings. The majority of the comments specifically addressed 
the proposals submitted by PADEP to satisfy the required amendments of 
the December 27, 2001, final rule. However, there were many comments 
submitted that were not responsive to this rulemaking.
    We received a number of comments about the importance of replacing 
water supplies and repairing structures. Sometimes these comments were 
included with a specific point about a topic of this rulemaking, and 
sometimes the comments appear to have been made to emphasize the 
importance of meeting the basic requirements of EPAct. Because comments 
related to the basic requirements of EPAct were considered in the 
December 27, 2001, rulemaking and were addressed at that time, we have 
not responded to them again as part of this rulemaking.
    We received many general comments expressing concerns about the 
potential impacts of underground mining to a range of hydrologic 
resources. The comments primarily mentioned impacts to streams, 
springs, and ponds. In addition, the comments mentioned provisions of 
the Federal Clean Water Act, the Pennsylvania Clean Streams Law, and 
Pennsylvania regulations related to the placement of fill material in 
waters of the Commonwealth of Pennsylvania. This rulemaking concerns 
proposed revisions to the Pennsylvania program submitted to address 
requirements under the Federal EPAct and implementing regulations. 
EPAct established new requirements for the replacement of drinking, 
domestic, and residential water supplies and the repair or compensation 
of damage to occupied dwellings and structures related thereto and 
noncommercial buildings. EPAct did not revise any of the existing SMCRA 
provisions concerning the protection of the overall hydrologic balance 
relative to streams, springs, aquifers, and ponds. In addition, EPAct 
did not revise any SMCRA standards related to the implementation of the 
Federal Clean Water Act. Because comments related to the basic 
hydrologic protection requirements of SMCRA were considered in the 
rulemaking efforts at the time they were implemented, we have not 
responded to them again as part of this rulemaking.
    We received a number of comments expressing concerns about how 
property owners are not allowed to control the subsidence damage 
abatement process. The comments ranged from expressing a desire to be 
able to choose their own contractors to disappointment that mining 
could result in significant disruption to their lives without their 
approval. We also received comments alleging that coal companies delay 
settlements with property owners and general complaints that agencies 
were not meeting their regulatory responsibilities. In 1992, EPAct put 
into place basic requirements that mining companies repair or 
compensate for damage to occupied dwellings and structures related 
thereto and noncommercial buildings and that they replace adversely 
affected drinking, domestic, and residential water supplies. The 
Federal requirements did not address how property owners and mining 
companies are to agree on the selection of contractors or the timing of 
mining activities. Because this rulemaking concerns amendments proposed 
to address deficiencies noted in OSM's December 27, 2001, final rule, 
comments on such matters are outside the scope of this final rule.
    Finally, there were several comments that characterized the 
December 27, 2001, rulemaking as an attempt by OSM to require the State 
program to be a ``mirror image'' of the Federal EPAct regulations, and 
indicated that we were applying the same approach for this rulemaking. 
The comments clearly mischaracterize the process OSM used to evaluate 
the adequacy of Pennsylvania's amendments and proposals to resolve 
identified deficiencies. Our December 27, 2001, final rule and this 
final rule incorporate provisions specific to the Pennsylvania program, 
such as protection of agricultural structures and water supplies (e.g., 
premining uses of the supply or any reasonably foreseeable uses of the 
supply). In addition, this final rule acknowledges the appropriateness 
of BMSLCA's compensation provision for the property's diminished value 
in the instances where it is technically impossible to develop an 
equivalent replacement of the water supply. We applied ``no less 
stringent than'' and ``no less effective than'' review standards when 
evaluating proposed changes to the statute and regulations, 
respectively.
    We will address the comments we received according to the pertinent 
required amendment.
    30 CFR 938.16(hhhh) Reference relating to bonding requirements.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(iiii) Prompt replacement of water supplies.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(jjjj) Two-year reporting limit on water supply 
effects.
    We received comments from three citizens expressing support for 
eliminating the two year limit on filing water supply damage claims 
requirement from Section 5.1(b) of BMSLCA and the corresponding 
regulation at 25 Pa. Code 89.152(a)(4) (Administrative Record Nos. PA 
841.70, 841.74 and 841.79). We agree with the commenters that statute 
of limitations, as it applies to water supplies protected under EPAct, 
is not consistent with SMCRA and the Federal regulations.
    PCA opposed PADEP's proposed resolution to this required amendment 
because it believes that Pennsylvania is authorized by Section 101(f) 
of SMCRA to impose reasonable conditions on the rights of property 
owners to pursue claims for domestic water loss. This section provides 
that the primary authority for developing, authorizing, issuing, and 
enforcing regulations for surface mining and reclamation operations 
should rest with the States. PCA indicated that further discussion of 
this point was included in its response to 30 CFR 938.16(nnnnn). While 
we agree with PCA that Pennsylvania has the right to promulgate 
regulations, this provision must be read in conjunction with Sections 
503 and 505 of SMCRA which provide for our review of State statutes and 
regulations to determine if they are as effective as, and not

[[Page 71541]]

inconsistent with, the Federal program. For more information on our 
response to PCA regarding this issue, please see our response to 
comments on 30 CFR 938.16(nnnnn).
    We also received comments from Tri-State (Administrative Record No. 
PA 841.94). Tri-State indicated that it did not want separate 
protections for EPAct and non-EPAct water supplies. Tri-State 
recommended that Section 5.1(b) of BMSLCA be superseded.
    We acknowledge Tri-State's concerns with water supply replacement. 
However, Federal regulations only require restoration of drinking, 
domestic or residential water supplies affected by underground mining 
operations. If a State program provides for protection of water 
supplies that are outside the scope of SMCRA protection, those 
provisions are more stringent than SMCRA and cannot be construed as 
inconsistent with SMCRA. As a result, we are superseding Section 5.1(b) 
of BMSLCA to the extent it would apply to water supplies covered under 
Section 720 of SMCRA and approving PADEP's regulation change at 25 Pa. 
Code 89.152. For more information and response to comments regarding 
the superseding of Section 5.1(b) of BMSLCA, see our final rule on 
superseding portions of BMSLCA published today in the Federal Register.
    30 CFR 938.16(kkkk) Water supply replacement: Promptness of 
actions.
    The Sierra Club (Administrative Record No. PA 841.75), Tri-State 
(Administrative Record No. PA 841.94), and one citizen (Administrative 
Record No. PA 841.70) commented that a three-year period was too long 
for a landowner to be without a water supply. The Sierra Club also 
commented that even with the implementation of the proposed resolution 
to this required amendment, Pennsylvania's program could still allow 
three years for establishment of a permanent replacement water supply. 
These comments center around language in the BMSLCA that provides that 
PADEP can issue orders requiring the provision of a permanent alternate 
source where the contamination, diminution or interruption does not 
abate within three years of the date the supply was affected. The 
changes PADEP has made to 25 Pa. Code 89.145a(b), regarding prompt 
replacement of water supplies, coupled with the changes to 25 Pa. Code 
89.146a(c), regarding insuring that the citizen complaint procedures 
are followed, will insure that water supplies are replaced as promptly 
as possible. We acknowledge that it may take up to three years or, in 
rare cases, even longer to provide permanent replacement, depending on 
the individual site conditions. Additionally, PADEP stated that the 
three year period is the outer limit for permanent water restoration or 
replacement and that it can take enforcement action sooner than three 
years. The proposed addition of the ``prompt'' standard to its 
regulations will give PADEP the tool it needs to insure that operators 
are working diligently and timely in attempting to provide a permanent 
water supply replacement. We have determined that PADEP's 
interpretation, along with the proposed regulatory amendments 
Pennsylvania submitted, is no less effective than the Federal 
requirements for water replacement because the Federal regulations have 
no specific time frames for providing permanent restoration or 
replacement of water supplies. Tri-State was also concerned that 
PADEP's interpretation differs from a previous interpretation and that 
PADEP could easily change its interpretation again. We disagree that 
Pennsylvania's actions are arbitrary because PADEP now is adding the 
``prompt'' standard to its water supply replacement requirement, thus 
it is reasonable that its interpretation must be adjusted accordingly. 
Additionally, our approval is based on the amended regulation and its 
interpretation. Any significant changes would be subject to 30 CFR 
732.17. As a result, we are approving the changes Pennsylvania made to 
25 Pa. Code Sections 89.145a(b) and 89.146a(c).
    30 CFR 938.16(llll). Denial of access for premining survey and its 
effect on affirmative proof of water supply contamination, diminution 
or interruption.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(mmmm). Relief of liability for water supply 
replacement when the adverse effect occurs more than three years after 
mining activity.
    PCA opposes the proposed resolution to this required amendment 
because it believes that BMSLCA provides that claims must be submitted 
three years after mining activity has occurred (Administrative Record 
No. PA 841.84). Further, PCA does not agree with PADEP's interpretation 
that the phrase, ``3 years after mining activity occurs'' includes post 
closure mine pool maintenance as the change to the definition of 
underground mining activities in 25 Pa. Code Sections 86.1 and 89.5 
indicates. According to PADEP, it has always interpreted the term 
``mining activity,'' as applied to underground mines, to mean the last 
aspect of reclamation. PADEP has advised us that the last aspect of 
reclamation includes management of the post closure mine pool. PADEP is 
clarifying this meaning by revising its definition of underground 
mining activities to include specifically post closure mine pool 
maintenance. We have determined that PADEP's interpretation of its 
program with regard to when underground mining activities are completed 
will insure that impacts to all water supplies protected under the 
Federal regulations will be covered under the Pennsylvania program. As 
a result, we are approving the changes to the definition of underground 
mining activities and we are removing this required amendment. If PCA 
is not satisfied with Pennsylvania's change to its definitions, it must 
work through Pennsylvania's regulatory review process to address any 
concerns.
    30 CFR 938.16(nnnn), (oooo), (qqqq), (rrrr). Compensation in lieu 
of water supply replacement.
    Tri-State (Administrative Record No. PA 841.94) commented that it 
opposes any regulation that does not mandate replacement of a water 
supply or the prohibition on mining areas that provide recharge for a 
water source. Tri-State further commented that Sections 5.2(g) and (h) 
and 5.3 of BMSLCA allow operators to destroy water supplies and escape 
liability for replacement and the Sierra Club (Administrative Record 
No. PA 841.75) commented that purchase of property in lieu of 
replacement of water supplies should not be allowed. Additionally, 
legal counsel for Representative William DeWeese of Greene County 
recommended (Administrative Record No. PA 841.89) that where a 
landowner does not want his water replaced, but PADEP determined that 
the water supply could be replaced in the future, any compensation for 
the water supply should be placed into escrow for future development of 
the water supply.
    We believe the commenters misinterpreted PADEP's change to its 
regulation and what we approving. We are not approving compensation to 
landowners in lieu of replacement of water supplies. The only time that 
a landowner may waive establishment of a water supply is when it is not 
needed for the postmining land use. Even then, the regulatory authority 
must determine that a supply is available for future development. What 
we are approving is PADEP's change to 25 Pa. Code 89.152(a) which 
recognizes that in rare instances a water supply cannot be replaced. 
While Federal requirements are silent on how property owners are to be 
treated when it is impossible to replace an adversely affected water

[[Page 71542]]

supply with a supply meeting the requirements of the EPAct, 
Pennsylvania's proposals to authorize a payment to the landowner are 
not inconsistent with Federal provisions requiring compensation to 
property owners for the diminution in fair market value to their 
property.
    There is nothing in the Pennsylvania regulations that allows an 
operator to escape liability for water supply replacement of drinking, 
domestic or residential water supplies. All replaced or restored 
drinking, domestic or residential water supplies must meet the 
standards of 25 Pa. Code 89.145a regarding quality and quantity. In the 
rare cases where PADEP has determined that a water supply meeting the 
criteria at 25 Pa. Code 89.145a cannot be developed, compensation for 
reduction of fair market value of the affected property served by the 
water supply is required at a minimum. Therefore, Pennsylvania's 
regulations place affirmative obligations on the operator for 
restoration or replacement of such supplies and do not allow acceptance 
of a substandard drinking, domestic or residential replacement or 
restoration water supplies. As a result, we are approving 
Pennsylvania's regulation changes and we are removing this required 
amendment.
    Please see our response in the final rule superseding portions of 
BMSLCA, published in today's Federal Register, regarding Tri-State's 
comments that Section 5.3 of BMSLCA conflicts with amended 25 Pa. Code 
89.152, its opposition to two classes of water supplies, and PCA's 
comments on this required amendment.
    30 CFR 938.16(pppp). Permanent alternate source definition.
    Tri-State (Administrative Record No. PA 841.94) commented that 
PADEP's changes to 25 Pa. Code Sections 89.5 and 89.145a(f) conflict 
with Section 5.2(i) of BMSLCA which makes the Pennsylvania program less 
effective than the Federal regulations. We disagree with the comment. 
As a matter of course, PADEP must interpret statutes when creating 
regulations to enforce those statutes. Generally, courts grant 
deference to an agency's interpretation of a statute that the agency 
implements. The regulations, which Pennsylvania amended, clearly state 
a restored/replaced EPAct water supply ``shall not cost the landowner 
or water user more to operate and maintain than the previous water 
supply.'' Thus, Pennsylvania's interpretation is also part of the 
implementing regulations.
    PCA (Administrative Record No. PA 841.84) commented that it does 
not oppose the proposed resolution for this required amendment, but it 
believes we applied the wrong standard of review to the definition of 
Pennsylvania's de minimis cost provisions at 89.145a(f). PCA believes 
litigation in Pennsylvania established the de minimis cost provisions 
and our requirement to modify them was unnecessary.
    We disagree with PCA's characterization of the de minimis 
provisions of Pennsylvania's regulations. The ``de minimis'' cases 
decided by the Environmental Hearing Board (EHB) do not set forth law 
of general application across the State of Pennsylvania. Those cases 
only decided the issue based on the specific facts of the individual 
cases. While the concept of a de minimis cost increase (i.e. a cost 
that cannot be calculated) for operating and maintenance costs for 
replacement water supplies is acceptable in the Federal regulations, 
Pennsylvania's characterization of de minimis costs as $60 per year or 
a 15% increase of the annual operating cost of the previous water 
supply does not fit that concept. Under the Pennsylvania definition of 
de minimis cost increase, landowners could be forced to pay more 
operating and maintenance costs for a replacement water supply than 
they did for the premining water supply. Requiring a landowner to pay 
these costs is less effective than the Federal regulations that require 
operators to absorb any increased operating and maintenance costs. As a 
result, we are approving Pennsylvania's proposed changes to its 
regulations at 25 Pa. Code Sections 89.5 and 89.145a(f).
    30 CFR 938.16(ssss). Other remedies available under State law.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(tttt). Prompt repair or compensation for structure 
damage.
    We received no direct comments in opposition to the proposed 
resolution of this required amendment.
    30 CFR 938.16(uuuu). Repair of dwellings and permanently affixed 
appurtenant structures or improvements.
    We received comments from PCA and NMA regarding the superseding of 
Section 5.4(a)(3) of BMSLCA with regard to this required amendment. 
Please see our responses to these comments in our final rule notice 
published in today's Federal Register in which we are superseding 
portions of BMSLCA.
    30 CFR 938.16(vvvv). Relief of liability for structure damage 
repair or compensation when an operator is denied access to conduct a 
premining or postmining survey.
    We received comments from a citizen (Administrative Record No. PA 
841.74) indicating that operators should not be relieved of liability 
for subsidence damage due to underground mining where a landowner 
denies access to the operator for a premining survey.
    With regard to structures protected by the Federal regulations, we 
agree in principle with the comment, but recognize the difficulty of 
implementing repairs when access for premining surveys has been denied. 
With the change to Pennsylvania's regulations at 25 Pa. Code 
89.144a(b), the relief of liability for denial of operator access for a 
premining survey for EPAct protected structures does not apply. 
However, all parties involved in the repair or compensation of damage 
from subsidence must fully recognize the importance of a premining 
survey in accurately documenting the extent of damage. Without these 
surveys, property owners and the regulatory authority must, by a 
preponderance of evidence, establish the specific instances of damage 
that is attributed to the subsidence from underground mining. Initial 
Federal regulations provided that a landowner who did not allow access 
for a premining survey would only forfeit the presumption of liability 
of damage (the presumption of liability concept was later suspended 
from the Federal regulations). The Federal regulations did not, and 
still do not, provide for relief of an operator's liability when access 
to conduct a survey was denied. We believe that PADEP's language as 
amended in 25 Pa. Code 89.144a(b) is consistent with the goals of 
encouraging landowners to allow premining surveys while preserving 
their rights for repair or compensation of subsidence damage that is 
caused by underground mining. As a result, we are approving the changes 
to Pennsylvania's program and we are removing this required amendment.
    30 CFR 938.16(wwww). Repair or compensation for damaged structures.
    We received a comment from Tri-State (Administrative Record No. PA 
841.94) that Section 5.4(c) of the BMSLCA should be changed to allow 
all landowners, whether or not their structures are protected under 
EPAct, to have the same protections as the Federal regulations.
    PADEP is revising its regulations to provide protections consistent 
with the Federal regulations regarding EPAct structures. However, 
BMSLCA provides additional repair and compensation provisions that are 
applicable to structures not protected under EPAct. There is nothing in 
the Federal

[[Page 71543]]

regulations preventing a State from adopting different standards for 
non-Federally protected structures and water supplies than for 
Federally protected structures and water supplies.
    30 CFR 938.16(xxxx). Structure Damage--Six-month negotiation period 
and two-year claim filing period.
    We received comments from two citizens (Administrative Record Nos. 
PA 841.79 and 841.70), Tri-State (Administrative Record No. PA 841.94), 
and PCA (Administrative Record No. 841.84). The citizens and Tri-State 
indicated that no limit should be placed on landowners to file claims 
of subsidence related damage. Additionally, one of the citizens 
indicated that a bond should be in place to pay subsidence damage in 
the event that a company goes bankrupt; the bonds will then be 
available for damage repair. Our review determined that the revision to 
25 Pa. Code 89.143a(c) is no less effective than the Federal 
regulations regarding current and future subsidence damage claims. Any 
subsidence damage to protected structures occurring from mining after 
the effective date of the 1994 amendments to BMSLCA must be repaired or 
compensated for by the operator. There is nothing in 25 Pa. Code 
89.143a(c), as it is currently written, that is contrary to this 
requirement. As for the comment regarding bonding, Pennsylvania 
requires a subsidence bond to be submitted at the time of permitting 
and 25 Pa. Code 86.152 requires that the bond be adjusted when future 
reclamation changes. This bond covers the potential damage to property 
and will be available for damage repairs in the event of a company's 
bankruptcy.
    PCA commented that PADEP should not have the ability to issue 
orders for damage repair, except for emergency situations, for six 
months following the first report of damage. PCA believes landowners 
and operator should be afforded the opportunity within the six months 
to resolve a subsidence claim amicably.
    PCA's suggestion is not in accordance with Federal requirements for 
investigating citizen complaints at 30 CFR 842.12 and taking 
enforcement actions at 30 CFR 843.12(c), both of which may have a time 
period shorter than six months. As noted in the preamble to the 
September 22, 2003, proposed rule (68 FR at 55117), PADEP indicated 
that it has the authority to take enforcement action prior to the 
expiration of the six-month negotiation period. This authority is found 
in Section 9 of BMSLCA. While taking enforcement actions prior to the 
expiration of the six month period will focus on requirements for 
emergency temporary repair measures, there is no guarantee that this is 
the only case where enforcement actions will be taken.
    As noted further in the preamble of the September 22, 2003, 
proposed rule regarding the proposed resolution to 30 CFR 938.16(yyyy), 
BMSLCA requires PADEP to make an investigation within 30 days following 
receipt of a claim of subsidence damage. Within 60 days of an 
investigation, PADEP must issue a written order directing the operator 
to compensate or cause repairs to be made. While there is nothing in 
SMCRA or the approved program prohibiting negotiations between a 
landowner and an operator, we expect PADEP to follow its approved 
procedures regarding investigation of any citizen complaint it 
receives. As a result, a citizen complaint investigation could require 
issuance of an enforcement order prior to the expiration of the six-
month negotiation period. PADEP's removal of the six-month period from 
its regulations at 25 Pa. Code 89.143a(d)(3) makes the program no less 
effective than the Federal regulations for citizen complaint 
investigation and issuance of enforcement actions. As a result, we are 
approving their regulation change and removing this required amendment.
    30 CFR 938.16(yyyy). Investigation and orders for repair of damaged 
structures.
    We received a comment from PCA (Administrative Record No. PA 
841.84) that it opposes the proposed resolution for this section to the 
extent that it would result in PADEP issuing enforcement orders 
requiring repair or compensation in other than emergency situations 
sooner than 6 months after subsidence damage was first discovered for 
the reasons set forth above.
    See our response to PCA's comments to 30 CFR 938.16(xxxx) regarding 
the elimination of the six month period. For the same reasons as given 
in that section, we are removing this required amendment.
    30 CFR 938.16(zzzz). Issuance of orders and payment of escrow when 
an operator fails to repair or compensate a landowner for subsidence 
damage.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(aaaaa). ``Pre-1994'' agreements relating to 
subsidence damage repair or compensation.
    We received comments from CAWLM (Administrative Record Nos. PA 
841.95 and PA 841.97) regarding the proposed resolution to this 
required amendment. CAWLM believes that we should supersede Section 
5.6(c) of BMSLCA which provides for a release of duty to repair or 
compensate for subsidence damage if agreements for such a release were 
made between 1966 and 1994.
    In our proposed rule, we asked for examples of such agreements 
because PADEP believes these agreements do not exist for either pre- or 
post 1966 structures. We did not receive any signed agreements in 
response to our request. While copies of unsigned agreements were 
provided, these do not establish that such agreements are in existence. 
As a result, we believe that Section 5.6(c) of BMSLCA will not affect 
the protections of the Federal program and we are removing the required 
amendment.
    30 CFR 938.16(bbbbb): Reference to ``pre-1994'' agreements.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(ccccc). Bonding for subsidence damage and water 
replacement.
    We received comments on the proposed resolution of this required 
amendment from Penn Future (Administrative Record No. PA 841.78), Tri-
State (Administrative Record No. PA 841.94), legal counsel to 
Representative William DeWeese of Greene County (Administrative Record 
No. PA 841.89), and two private citizens (Administrative Record Nos. PA 
841.74 and 841.79). The commenters noted that use of liability 
insurance in lieu of bond for replacement or restoration of water 
supplies is not an appropriate mechanism. Penn Future noted that 
citizens may be forced to sue insurance companies or mining companies 
to obtain their benefits and asserts that this is not as effective as 
having bonds for replacement or restoration. Additionally, Penn Future 
indicated that PADEP has historically required operators to submit 
liability insurance policies that provide only the minimum coverage 
instead of tailoring the policies to the specific potential liabilities 
of water supply restoration or replacement of individual mines.
    Tri-State noted that the proposed resolution does not satisfy the 
Federal requirement of 30 CFR 817.121(c)(5) regarding an increase of 
bond if damage repair or compensation or water supply replacement or 
restoration are not completed within certain time frames. Tri-State 
does not believe that PADEP's change to 25 PA Code 86.152(a) requiring 
mandatory bond adjustments coupled with its subsidence bond 
requirements and use of liability insurance policies for water supply 
replacement are as effective as the

[[Page 71544]]

requirements of 30 CFR 817.121(c)(5). Tri-State indicated that PADEP's 
program will not require additional bond for damages if the damages are 
not repaired or arrangements made for compensation after 90 days. Tri-
State indicated that Pennsylvania's program should be amended to 
require adjustment of the subsidence bond within 90 days where the 
amount of subsidence damage liability remaining outstanding exceeds the 
amount of the subsidence bond posted. Tri-State also provided comments 
similar to Penn Future with regard to the use of liability insurance 
for replacement or restoration of water supplies. In addition, Tri-
State noted that liability insurance is not as effective as bonds for 
water supply replacement or restoration because it cannot be adjusted 
upward after damages have occurred as bonds can be.
    The legal counsel to Representative William DeWeese (Administrative 
Record No. PA 841.89) indicated that Pennsylvania should conduct a 
financial review of operators to insure that they have sufficient 
capital to restore water supplies in the event of an economic downturn. 
If there is not sufficient capital to withstand a downturn, the 
operator should be required to purchase subsidence insurance.
    We disagree with the commenter's position that Pennsylvania's 
subsidence bond and applicable adjustment requirements are in conflict 
with the bonding requirements at 30 CFR 817.121(c)(5) with regard to 
subsidence damage to occupied dwellings and surface lands. The 
requirement at 30 CFR 817.121(c)(5) was put into place to guarantee the 
repair of damage to occupied dwellings and surface lands in the event 
of a forfeiture by an operator. Under the provision, operators that do 
not complete damage repairs within 90 days must provide additional 
performance bond in the amount of the estimated cost of the dwelling 
and land repairs if the permittee will be repairing, or in the amount 
of the decrease in value if the permittee will be compensating the 
owner for the damage to an occupied dwelling. The bond must be in place 
until the repair, compensation, or replacement is completed.
    The Pennsylvania program requires a subsidence bond prior to the 
issuance of the permit. The bond covers the damage to occupied 
dwellings, agricultural structures, businesses, and surface lands. To 
implement this requirement, PADEP requires a subsidence amount based 
upon an actual assessment of the value of the land and structures 
overlying the area to be undermined. At the time that the permit is 
issued, the subsidence bond, which must be requested after the damage 
under the Federal provision, is already in place under the Pennsylvania 
program. In terms of having an initial bond amount to cover subsidence 
damage to occupied dwellings and land, this approach is more effective 
than the minimum Federal standard.
    The commenter appears to be primarily at issue with the degree to 
which the initial bond amount plus the periodic adjustments under the 
Pennsylvania program are consistent with the Federal requirements at 
817.121(c)(5) which require a modification to the bond amount at 90 
days following damage if repairs are not complete. To illustrate the 
concern, the commenter provided a hypothetical example where, under 
certain conditions, the amount of the unrepaired damages could exceed 
the Pennsylvania subsidence bond. The commenter stated that this 
situation would be in conflict with the 90 day adjustment requirement 
at 30 CFR 817.121(c)(5).
    We do not agree that the commenter has applied the requirement at 
30 CFR 817.121(c)(5) appropriately to the bonding process as proposed 
by Pennsylvania. The 90 day adjustment requirement at 30 CFR 
817.121(c)(5) only applies to operations that do not have a bond that 
is already designed to cover the anticipated damage. Pennsylvania has 
chosen to require a bond prior to permit issuance that will cover the 
anticipated damages from subsidence to structures and land. Because 
there is a bond in place, the 90-day adjustment requirement of 30 CFR 
817.121(c)(5) no longer applies and Pennsylvania must now conduct the 
appropriate reviews and adjustments required by 30 CFR 800.15(a). At 30 
CFR 800.15(a), Pennsylvania is under the obligation to adjust the 
permittee's bond from time to time as the cost of future reclamation 
changes. In addition, 30 CFR 800.15(a) allows Pennsylvania to fulfill 
the requirement by setting a schedule. This is consistent with the 
proposal by Pennsylvania to adjust bonds as needed at the time of 
permit renewal or a change to the subsidence control plan. Under 25 Pa. 
Code 86.152(a), Pennsylvania also has the discretionary authority to 
conduct the reviews and require an adjustment sooner, if necessary. We 
find no reason to disapprove Pennsylvania's proposal with regard to the 
bonding of subsidence impacts to structures and land.
    We also disagree with the commenter's position that use of 
liability insurance policies to cover water supply restoration or 
replacement is not appropriate. Both the Federal regulations and 
Pennsylvania's regulations allow the use of insurance policies in lieu 
of the increased bond provisions of 30 CFR 817.121(c)(5). The Federal 
regulations at 30 CFR 800.14(c) provide that ``An operator's financial 
responsibility under Sec. 817.121(c) of this chapter for repairing 
material damage resulting from subsidence may be satisfied by the 
liability insurance policy required under Sec. 800.60.'' Pennsylvania's 
regulations at 25 Pa. Code 86.168(c) provides that liability insurance 
shall include a rider covering loss or diminution in quantity or 
quality of public or private sources of water. Subsection (g) provides 
that a bond or an individual insurance policy as required under 
Subsection (c) may be provided in lieu of liability insurance to cover 
replacement or restoration of water supplies.
    The commenter also expressed concerns regarding the proper amount 
of insurance an operator must carry. Pennsylvania's minimum coverage 
for property damage is $500,000 per person and $1 million aggregate. 
This amount exceeds the minimum coverage required by Federal 
regulations at 30 CFR 800.60 which require only $300,000 for each 
occurrence and $500,000 aggregate.
    Pennsylvania's regulations allowing liability insurance to 
substitute for water supply replacement and the minimum amount of 
insurance the regulations require an operator to have are no less 
effective than the Federal regulations. The commenters' concerns 
regarding the mechanics of claim collection and whether specific 
amounts of insurance are sufficient for individual cases are issues 
that will be addressed in our oversight of Pennsylvania's 
implementation of its approved program.
    Finally, there is no provision in the Federal regulations for 
requiring operators to purchase subsidence insurance, nor are there any 
provisions requiring a review of an operator's financial solvency if 
the operator uses a collateral or surety bond. The Federal regulations 
rely on bonding or liability insurance to secure repair or replacement 
in the event operators are unable to fulfill their obligations. We have 
determined that the existing provisions of Pennsylvania's statute and 
regulations and the changes proposed in this amendment provide to be no 
less effective than the bonding provisions of the Federal regulations.
    30 CFR 938.16(ddddd). Definition of de minimis cost increase.

[[Page 71545]]

    We received comments on the proposed resolution of this required 
amendment from a citizen (Administrative Record No. PA 841.74), Tri-
State (Administrative Record No. 841.94), and CAWLM (Administrative 
Record No. PA 841.97). The commenters were opposed to Pennsylvania's 
definition of de minimis cost increases at 25 Pa. Code 89.5 and the 
regulations implementing it at 25 Pa. Code 89.145a. The commenters 
believe that costs for operation and maintenance of replacement water 
supplies beyond those for the premining water supplies should be paid 
by the operator. Tri-State further indicated the proposed resolution 
should be adopted for non-EPAct structures as well as for EPAct 
structures. CAWLM indicated that agreements between operators and 
landowners for a one-time payment of increased costs favors operators 
and can result in agreements that will not cover the additional 
operating and maintenance costs of a replacement supply.
    We are approving Pennsylvania's proposed changes to 25 Pa. Code 
89.145a(f)(5) because they are no less effective than the Federal 
regulations regarding payment of operating and maintenance costs of 
EPAct replacement water supplies. For EPAct protected water supplies, 
operators will be required to pay operating and maintenance costs that 
are in excess of the costs to operate and maintain the water supply 
that existed prior to mining. While Tri-State would like the Federal 
protections to apply to non-EPAct protected supplies, there is no 
Federal requirement that Pennsylvania must adopt the same protection 
standards for water supplies not covered by EPAct. The Federal 
definition of ``Replacement of water supply'' at 30 CFR 701.5 
specifically recognizes that payment of the increased costs can be 
satisfied by a one-time payment in an amount that covers the present 
worth of the increased costs. This lump sum payment may be preferable 
to the water supply owner because it eliminates the possibility that 
the operator may not pay the annual increased costs due to bankruptcy 
or financial difficulties. We have determined that Pennsylvania's 
proposed change to its regulations requiring payment of cost increases 
for operating and maintaining replacement water supplies are no less 
effective than the Federal requirements and we are approving them. 
Because of these proposed regulation changes, we are removing this 
required amendment.
    30 CFR 938.16(eeeee). Definition of fair market value.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(fffff). Definition of permanently affixed appurtenant 
structures.
    We received comments from Tri-State (Administrative Record No. PA 
841.94) and PCA (Administrative Record No. PA 841.84). Tri-State 
commented that it supported PADEP's deletion of ``permanently affixed 
appurtenant structures'' from 25 Pa. Code Section 89.5 in favor of a 
broader definition of structures related to occupied residential 
dwellings. Tri-State cautions against too narrow a definition of 
``occupied'' in this context, however. Tri-State commented that it did 
not want Pennsylvania's regulations to give broader protection to EPAct 
covered structures and the structures related thereto than to non-EPAct 
protected.
    PCA commented that landowners should be required to take steps to 
protect property not permanently affixed to the ground. PCA believes 
that structures that are easily removed are not fixtures and therefore 
not real property requiring protection from subsidence damage.
    As we noted in an earlier response, there is nothing in the Federal 
regulations preventing a State from adopting different standards for 
non-Federally protected structures and water supplies than for 
Federally protected structures and water supplies. Therefore, in 
response to Tri-State's comment, Pennsylvania is allowed to provide 
protections to any structures or water supplies as long as it meets the 
minimum Federal standards. If Tri-State wants Pennsylvania to provide 
additional protections, it must work with PADEP through Pennsylvania's 
regulatory review process.
    With regard to PCA's comment, the responsibility to move or 
dismantle these structures lies with the operator and not the 
landowner. The Federal regulations at 30 CFR 817.121(a) requires the 
permittee to take steps to prevent or minimize material damage, not the 
landowner. In many cases, structures not permanently affixed to the 
ground surface cannot be easily moved or dismantled by the landowner. 
The landowner would have to incur costs to move or dismantle these 
structures. One of the purposes of SMCRA was to ``assure that the 
rights of surface landowners and other persons with a legal interest in 
the land or appurtenances thereto are fully protected.'' 30 U.S.C. 
1202(b) (emphasis added). Additionally, the definition of occupied 
residential dwelling and structures related thereto protects ``any 
building, structure or facility installed on, above or below, or a 
combination thereof, the land surface if that building structure or 
facility is adjunct to or used in connection with an occupied 
residential dwelling.'' This regulation describes examples of such 
structures to include garages, storage sheds, and greenhouses. 
Structures such as these may not be permanently affixed to the ground 
surface, yet it may be difficult to dismantle or move them. Both the 
Federal regulations, and now Pennsylvania's regulations, provide that 
operators must repair or compensate landowners for damages to these 
structures.
    30 CFR 938.16(ggggg). Subsidence control plan--prevention of 
material damage to EPAct structures.
    We received a comment from Tri-State (Administrative Record No. PA 
841.94), indicating that regardless of whether a surface structure is 
located over a conventional room and pillar mine or over a longwall 
mine, the mine operator's subsidence control plan should not be 
approved unless the prevention of material damage is demonstrated.
    The Federal regulations at 30 CFR 784.20(b)(7) provide the 
requirements for subsidence control plans. These regulations provide 
that for areas where planned subsidence is projected to be used (such 
as in a longwall mine), the subsidence control plan is to contain a 
description of methods to be employed to minimize damage from planned 
subsidence to non-commercial buildings and occupied residential 
dwellings and structures related thereto; or the written consent of the 
owner of the structure or facility that minimization measures not be 
taken; or, unless the anticipated damage would constitute a threat to 
health or safety, a demonstration that the costs of minimizing damage 
exceed the anticipated costs of repair. Pennsylvania's proposed 
regulation change at 25 Pa. Code 89.141(d) provides a similar 
requirement. The Federal regulations do not provide for disapproving a 
subsidence control plan for an area of planned subsidence because it 
does not provide for prevention of material damage, and therefore, we 
cannot require Pennsylvania to include such a provision in its program. 
We have determined that Pennsylvania's proposed revisions to its 
regulations are no less effective than the Federal regulations 
regarding the requirements for subsidence control plans.
    30 CFR 938.16(hhhhh). Subsidence control plan--minimizing material 
damage to EPAct structures.

[[Page 71546]]

    See response to comments in 938.16(jjjjj) below.
    30 CFR 938.16(iiiii). Measures to minimize material damage.
    See response to comments in 938.16(jjjjj) below.
    30 CFR 938.16(jjjjj). Prevention of material damage.
    We received comments from Tri-State (Administrative Record No. PA 
841.94), and the Sierra Club (Administrative Record No. PA 841.75). 
Tri-State indicated that the modifications contained in the PADEP's 
proposed regulations are inadequate in that these regulations do not 
require mine operators to prevent material damage to all structures. 
Tri-State recommended that PADEP modify its draft regulations to make 
prevention of such material damage mandatory for both room and pillar 
and longwall mines. Tri-State also noted that regulations pertaining to 
longwall mining only require that a mine operator recognize material 
damage to surface structures and then only to the extent 
technologically and economically feasible. Tri-State believes that 
longwall mine operators must be required by regulations to develop 
technology to make the prevention of material damage feasible. Tri-
State concluded by indicating that, until damage prevention is 
required, Pennsylvania's regulatory program will not be as effective as 
the Federal minimum requirements.
    The Sierra Club noted that both State and Federal regulations now 
require the prevention of material damage to public buildings, such as 
schools, churches, hospitals, and large lakes. The rules do not 
distinguish between the types of mining. PADEP's proposed rule would 
change ``prevent'' to ``minimize'' in addressing material damage to 
these buildings if longwall mining is proposed. The Sierra Club objects 
to the change because it would allow longwall mining to cause material 
damage while other types of mining would have to prevent such damage.
    We believe the commenters have misunderstood the Federal 
requirements. The Federal regulations at 30 CFR 817.121(a)(2) require 
that if a permittee employs mining technology that provides for planned 
subsidence in a predictable and controlled manner (such as longwall 
mining), the permittee must take necessary and prudent measures, 
consistent with the mining method employed, to minimize material damage 
to the extent technologically and economically feasible to non-
commercial buildings and occupied residential dwellings and structures 
related thereto. There is no Federal requirement that requires a 
permittee to take measures to prevent material damage when employing 
mining techniques that provide for planned subsidence.
    If permittees employ mining techniques that do not result in 
planned subsidence (such as in conventional room and pillar mines), 
then the permittee must adopt measures consistent with known technology 
that prevent subsidence from causing material damage to the extent 
technologically and economically feasible, maximize mine stability, and 
maintain the value and reasonably foreseeable use of surface lands.
    In response to the Sierra Club comments, the Federal regulations at 
30 CFR 817.121(d) provide that underground mining activities shall not 
be conducted beneath or adjacent to (1) public buildings and 
facilities; (2) churches, schools, and hospitals; or (3) impoundments 
with a storage capacity of 20 acre-feet or more or bodies of water with 
a volume of 20 acre-feet or more, unless the subsidence control plan 
demonstrates that subsidence will not cause material damage to, or 
reduce the reasonably foreseeable use of, such features or facilities. 
Pennsylvania's regulation at 25 Pa. Code 89.142a(c) provides the same 
protections to these structures as do the Federal regulations. 
Moreover, PADEP's proposed regulation at 25 Pa. Code 89.141(d)(3) 
recognizes the specific protections afforded to structures under 25 Pa. 
Code 89.142a(c) and does not, in any way, waive those protections.
    PADEP's proposed change to its regulations at 25 Pa. Code 
89.142a(d) provides the same protections for EPAct structures that the 
Federal regulations require. As a result, we have determined that this 
section is no less effective than the Federal counterpart.
    30 CFR 938.16(kkkkk). Prompt repair or compensation for structure 
damage.
    We received comments from one citizen (Administrative Record No. PA 
841.73) and from Tri-State (Administrative Record No. PA 841.94). The 
citizen commented that homeowners should be treated fairly with prompt 
financial compensation. Tri-State indicated it did not want us to 
accept as adequate PADEP's proposed change to 25 Pa. Code 
89.142a(f)(l)(ii) and, instead, require an amendment to Section 
5.4(a)(3) of BMSLCA. Tri-State does not believe amending the regulation 
without amending the corresponding statutory provision is adequate.
    Our review has determined that Section 5.4(a)(3) of BMSLCA and the 
regulation at 25 Pa. Code 89.142a(f)(1)(ii) are not in conflict with 
regard to the requirement that repairs or compensation for structural 
damage be made promptly. While BMSLCA is silent on the promptness of 
repairs or compensation, there is nothing in this portion of the 
statute preventing prompt repairs or compensation. PADEP is proposing 
to include the prompt standard in its regulations interpreting this 
portion of BMSLCA. This interpretation will make the Pennsylvania 
program as effective as the Federal regulations regarding promptness of 
repairs or compensation.
    30 CFR 938.16(lllll). Repair of dwellings and permanently affixed 
appurtenant structures or improvements.
    PCA provided comments to the proposed resolution of this required 
amendment (Administrative Record No. PA 841.84). PCA opposes the 
proposed resolution of 30 CFR 938.16 (uuuu) and 30 CFR 938.16(lllll) 
and the proposed amendment to 25 Pa. Code 89.142a(f)(l) which would 
obligate mine operators to repair or compensate for mine subsidence 
damage to dwellings constructed after the owner knew or should have 
known that mining would be occurring beneath his property within the 
next 5 years. PCA believes that these provisions are designed to 
discourage property owners, who have knowledge that mining is imminent, 
from building new structures in locations where they could be damaged 
and to encourage such persons to build in areas which will not be 
undermined. PCA also noted that there is nothing unreasonable, nor is 
there anything in SMCRA or OSM's regulations, which would preclude 
local municipalities from enacting a zoning ordinance to prohibit new 
construction in areas that are unstable or prone to subsidence or 
slips. PCA maintains that such a local zoning ordinance would be 
reasonable and justified because it would ensure that the local tax 
base is not reduced by avoidable damage to new structures.
    Section 720(a)(1) of SMCRA requires the prompt repair or 
compensation for material damage resulting from subsidence to certain 
structures. There is no requirement that the structure be in place at 
the time of permit application or renewal even though the water 
replacement provisions of Section 720(a)(2) are limited to only those 
drinking, domestic or residential water supply from wells or springs in 
existence prior to the application for a surface coal mining and 
reclamation permit. Congress saw fit to limit the provision of water 
supply replacement to supplies in existence at the time of permit 
application, but did not provide a similar restriction to structures. 
The

[[Page 71547]]

issue of what recently constructed non-commercial buildings or occupied 
dwellings or related structures are protected under EPAct arose when a 
commenter to the Federal EPAct regulations stated that a permittee is 
not obligated to repair subsidence-related damage to a building 
constructed after mining occurred. 60 FR at 16735. OSM agreed, stating 
``the requirement should not apply to structures which did not exist at 
the time of mining.'' Id. This makes it clear that if the building or 
dwelling/structure existed at the time of mining, the operator is 
obligated to repair or compensate. To uphold PCA's position would 
effectively put a limit on a landowner's property rights for as much as 
five years and eliminate repair or compensation requirements to a class 
of structures depending on when they were built. SMCRA did not envision 
such a limitation.
    PCA is correct in its assertion that there is no provision in SMCRA 
preventing local municipalities from enacting an ordinance preventing 
constructing of dwellings under certain circumstances. However, SMCRA 
would apply to protected structures even if constructed in violation of 
such an ordinance. As a result, we are approving PADEP's proposed 
changes to its regulations and we are removing this required amendment.
    30 CFR 938.16(mmmmm). Protection of utilities from underground 
mining activities.
    We received no comments in opposition to the proposed resolution of 
this required amendment. However, we did receive comments from the 
legal counsel for Representative William DeWeese of Greene County 
(Administrative Record No. PA 841.89) regarding a case where residents 
of Greene County lost access to free natural gas because of a dispute 
with a gas company and the inability of the homeowners to hook up to 
the company's distribution line. She indicated that she would like 
there to be language in PADEP's regulations that require PADEP to bring 
parties together in cases where personal gas supplies are affected to 
decide how the parties are going to share the costs to replace the 
supplies.
    PADEP's changes to 25 Pa. Code 89.142a(f)(1)(iii) provide that 
operators must repair, restore, replace or compensate owners for 
material damages to customer-owned utilities.
    We have determined that this proposed regulation is no less 
effective than the Federal regulations requiring repair or compensation 
for damages to occupied dwellings and structures related thereto. PADEP 
has the regulations in place for insuring that damages to utilities are 
repaired or landowners receive compensation for those damages. If there 
are questions regarding the compensation aspects of the case pointed 
out by Representative DeWeese's legal counsel, the parties involved 
should file a citizen's complaint with PADEP.
    30 CFR 938.16(nnnnn). Statute of limitations on damage repair or 
compensation--claims must be filed with PADEP within two years of 
damage.
    We received comments from PCA (Administrative Record No. PA 
841.84). PCA indicated that SMCRA is completely silent on the issue of 
whether claims for subsidence damage to dwellings and claims for the 
replacement of domestic water supplies must be filed within any defined 
time frame. Of equal importance, OSM has never promulgated any 
regulation which interprets SMCRA as allowing for the filing of such 
claims at any time. PCA further indicated that in the absence of any 
express prohibition in SMCRA on placing limits on the time within which 
subsidence damage claims must be filed, there is no basis for OSM to 
conclude that Pennsylvania's decision to do so is not authorized by 30 
U.S.C. 1201(f). Indeed, in the absence of any express limitation-of-
action period on a Federal statutory claim the Courts will 
traditionally provide for one. PCA indicated that when a statute 
creating a right-of-action does not specify a limitation-of-action 
period, it cannot be assumed that Congress intended that there be no 
time limit on the action.
    PCA further indicated that the justification for Pennsylvania 
creating these new statutory claims for homeowners was a desire to 
preserve its local ad valorem tax base. This goal is not fostered if 
homeowners can wait 5 or 10 or 25 years to file their claims. On the 
other hand, it is fostered if claimants are encouraged to file their 
claims promptly, and a reasonable statute of limitations certainly 
encourages the timely filing of subsidence damage claims.
    We disagree with PCA's characterization of SMCRA and the Federal 
regulations with regard to a statute of limitations. Pennsylvania 
advanced similar arguments regarding statutes of limitations that we 
addressed in the December 27, 2001, final rule (66 FR at 67014, 67023-
24). Our response to those comments is incorporated by reference into 
this rule. PCA has not provided any compelling reason for us to 
reassess the position stated in that final rule. For more information 
on this issue see our response to comments under 30 CFR 938.16(xxxx).
    30 CFR 938.16(ooooo). Investigation and orders for repair of 
damaged structures.
    For a discussion of the comments received with regard to this 
issue, see our response to comments under 30 CFR 938.16(yyyy).
    30 CFR 938.16(ppppp). Relief of liability for structure damage 
repair or compensation when operator is denied access to conduct a 
premining or postmining survey.
    We received comments from PCA (Administrative Record No. PA 
841.84). PCA opposes the proposed resolution of 30 CFR 928.16 (vvvv) 
and 30 CFR 938.16 (ppppp) and the proposed amendment to 25 Pa. Code 
89.144(a)(1). PCA indicated that BMSLCA and 25 Pa. Code 89.144(a)(l) do 
not deny any owner of a dwelling or institutional structure the right 
to file a subsidence damage claim. Instead, these provisions of the 
Pennsylvania program merely condition this right by providing that, in 
return for being given a right to file a statutory subsidence damage 
claim, the structure owner must grant the mine operator an opportunity 
to conduct a premining and a post-mining inspection.
    PCA further noted that with respect to the pre-mining inspection 
condition, few dwellings or institutional structures do not have some 
normal damage caused by weathering and wear and tear. The nature of 
this damage is often indistinguishable from certain types of damage 
that can be caused by mine subsidence. To assure that operators are not 
required to pay compensation equal to the cost of repair (the 
Pennsylvania compensation standard which is different from OSM's) for 
``damages'' they did not cause, the Pennsylvania General Assembly and 
the Environmental Quality Board (EQB) concluded structure owners should 
not be allowed to file subsidence damage claims unless they allow the 
mine operator access to their structures to establish a pre-mining 
baseline of its condition.
    We recognize the importance of pre-mining surveys and encourage all 
landowners to obtain them. However, as we noted in the preamble to the 
December 27, 2001, final rule, the absolute removal of the right to 
repair or compensation if the operator is denied access to the property 
is not in accordance with the requirements of SMCRA. In the preamble, 
we said:

    Pennsylvania has failed to account for information that the 
homeowner or the regulatory authority possesses. It is possible that 
the homeowner may hire someone to

[[Page 71548]]

conduct a survey. In Pennsylvania's scenario, the homeowner would 
have no relief under Act 54 even though he had relevant information 
that showed causation.
* * * * *
    Additionally, in the preamble to the March 31, 1995, Federal rules 
on subsidence (60 FR at 16741), OSM discussed the effect of a landowner 
denying access to a property and concluded that in any enforcement 
proceeding OSM or the regulatory authority may take the effect of the 
denial into account in determining what weight, if any, to give to the 
rebuttable presumption of causation. Even though the Federal rules 
concerning the presumption were suspended, this part of the preamble 
clearly indicates OSM's intent that enforcement actions would proceed 
even if landowners denied permission to operators to conduct premining 
surveys. There are no passages in the preamble or the regulations that 
relieve operators of their duty to repair or compensate landowners for 
subsidence damage to covered structures. 66 FR at 67022.
    Pennsylvania's proposed revision of 25 Pa. Code 89.144a will 
eliminate the concern we expressed in the December 27, 2001, final 
rule. The changes to this section, as applied to EPAct structures, 
require that if, by a preponderance of evidence, a landowner can show 
damage to be caused by underground mining, the right to repair or 
compensation will be retained. This protects both the landowner and 
operator by both encouraging pre-subsidence surveys and insuring only 
that damages caused by underground mining are subject the repair or 
compensation provisions.
    PCA also stated that property owners have a legal obligation to 
mitigate their own potential damage. The Federal regulation at 30 CFR 
817.121(a)(2) allows a structure owner to waive minimization measures. 
However, this waiver does not eliminate ``any requirement pursuant to 
paragraph 817.121(c) to repair damage from subsidence.'' (60 FR at 
16734).
    We also received a comment from legal counsel to Representative 
William DeWeese of Greene County (Administrative Record No. PA 841.89) 
indicating that in the case where a landowner refuses an operator right 
of entry to conduct a premining survey, BMSLCA requires affirmative 
proof that an operator caused the damage, while under the regulations, 
the standard for proof is a preponderance of evidence. She believes 
that there are two standards.
    We note that the reference to affirmative proof in BMSLCA was for 
water supplies while the preponderance of evidence reference in the 
regulations was for structures. Even so, we do not agree that these are 
two standards. Both are evidentiary terms and are consistent with each 
other. ``Affirmatively proving'' is a general reference to what a party 
must do to prove facts that are in dispute. In civil cases, the degree 
of proof is by a preponderance of evidence. As we noted above, the use 
of preponderance of the evidence is no less effective than the Federal 
regulations in requiring repair or compensation for damages to 
structures. As a result, we are approving the proposed changes to 
Pennsylvania's program.
    30 CFR 938.16(qqqqq). Water supply surveys--various issues.
    We received comments from Tri-State (Administrative Record No. PA 
841.94), the Sierra Club (Administrative Record No. PA 841.75), and 
CAWLM (Administrative Record No. PA 841.97). Tri-State indicated that 
citizens have a right to have a deadline for premining sampling of 
water supplies before being impacted by mining. Tri-State does not 
agree with the proposed resolution that pre-mining sampling occur 
``before the supply is susceptible to impacts from mining'' as found at 
25 Pa. Code 89.145a(a)(l). Tri-State is concerned with whether water 
supply owners will be provided the results of the premining survey in 
time to have their own survey done, if they disagree with the mine 
operator's results. To remedy this concern, Tri-State recommends that 
PADEP's rule be rewritten to require that premining surveys be 
completed prior to the time a water supply is susceptible to mining-
related effects and prior to mining within 2500 feet of the water 
supply.
    The Sierra Club and CAWLM also suggested that premining sampling be 
conducted prior to mining within 2500 feet of a water supply.
    We acknowledge the commenters desire to have water supplies sampled 
sufficiently in advance of mining to give landowners and water supply 
users sufficient time to prepare for adverse effects to the supply. 
However, we do not believe substituting one arbitrary standard for 
another meets the requirements of OSM's March 9, 1999, letters to Tri-
State Citizens Mining Network and the Interstate Mining Compact 
Commission that provide for delays in water supply samples as long as 
the permit application contains sufficient information to develop the 
Probable Hydrologic Consequences and Cumulative Hydrologic Impact 
Assessment. The commenters give no evidence of why sampling prior to 
mining advancing within 2500 ft. of a water supply will give any more 
reliable information than PADEP's prior standard of 1000 ft. Water 
supplies can be impacted by underground mining far in advance of the 
2500 ft. standard the commenters are proposing. We believe that PADEP's 
proposed language change at 25 Pa. Code 89.145a(a)(1) requiring 
sampling prior to the time a water supply is susceptible to mining-
related effects will provide that all water supplies are adequately 
sampled in a timely manner regardless of their location relative to the 
mining operation.
    30 CFR 938.16(rrrrr). Water supply replacement--promptness of 
action and reasonably foreseeable uses.
    We received comments from Tri-State (Administrative Record No. PA 
841.94), the Sierra Club (Administrative Record No. PA 841.75), CAWLM 
(Administrative Record No. PA 841.97), and a citizen (Administrative 
Record No. PA 841.74). Tri-State recommended that the reasonably 
foreseeable use determination of 25 Pa. Code 89.145a(b) be made by 
PADEP and not the operators. They also recommended that the foreseeable 
use determination provision be replaced with a requirement that 
replacement water supplies be equivalent to the supply that existed 
prior to mining. The Sierra Club and CAWLM echoed the citizen's 
comment. CAWLM also suggested that, if we accept PADEP's rule regarding 
reasonably foreseeable use, only a homeowner (and not PADEP or an 
operator) is qualified to determine what a reasonably foreseeable use 
would entail.
    In our December 27, 2001, final rule, we determined that PADEP's 
concept that a replacement water supply that takes into account the 
reasonably foreseeable uses of that supply is no less effective than 
the Federal standard requiring an equivalent replacement. For a full 
discussion of our decision with regard to the concept of reasonably 
foreseeable use, see our final rule in the December 27, 2001, Federal 
Register (66 FR at 67011-12). Because reasonably foreseeable uses as a 
standard for water supply replacement was addressed and approved in the 
December 27, 2001, rulemaking, comments recommending its disapproval 
are not applicable to this rulemaking. In PADEP's current amendment, 
the only water supply replacement issue is the requirement that PADEP 
take into account both the premining uses of the water supply and any 
reasonably foreseeable uses of the supply. We disagree with CAWLM's 
comment that only a homeowner (and not PADEP or an operator) is 
qualified to determine reasonably foreseeable

[[Page 71549]]

uses. While homeowners are a source of information to consider when 
determining the reasonably foreseeable uses of a supply, there may be 
important domestic and residential uses that the current homeowner 
might not identify in determining minimum thresholds for supply 
replacement.
    30 CFR 938.16(sssss). Water supply replacement--prompt provision of 
temporary water.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(ttttt). Quality and quantity of temporary water 
supplies.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(uuuuu). De minimis cost increase.
    See comments and our responses to 30 CFR 938.16(ddddd) earlier in 
this rulemaking.
    30 CFR 938.16(vvvvv). Reasonably foreseeable use--adequate 
quantity.
    We received comments from the Sierra Club (Administrative Record 
No. PA 841.75), Tri-State (Administrative Record No. PA 841.94), and 
CAWLM (Administrative Record Nos. PA 841.92 and 841.97).
    Tri-State recommended changing PADEP's requirement that a 
replacement water supply meet current and reasonably foreseeable uses 
be changed to require replacement water supplies to be made equivalent 
to premining water supplies. These comments were echoed by the Sierra 
Club and CAWLM. For an explanation of our approval of PADEP's standards 
for replacement of water supplies, please see our response to comments 
in 30 CFR 938.16(rrrrr) shown earlier in this rulemaking.
    30 CFR 938.16(wwwww). Water supply problems--investigation time 
frames.
    We received no comments in opposition to the proposed resolution of 
this required amendment.
    30 CFR 938.16(xxxxx). Relief of liability for water supply 
replacement when the adverse effect occurs more than three years after 
the mining activity.
    See our response to comments under 30 CFR 938.16(mmmm) shown 
earlier in this rulemaking.
    30 CFR 938.16(yyyyy). Two-year reporting limit on water supply 
effects.
    See our response to comments under 30 CFR 938.16(jjjj) shown 
earlier in this rulemaking.
    30 CFR 938.16(zzzzz). Compensation in lieu of water supply 
replacement.
    We received comments from Tri-State (Administrative Record No. PA 
841.94). Tri-State recommends preservation of water resources by 
requiring operators to identify all actual and potential water supplies 
within the permit area. Tri-State further recommended that PADEP should 
require operators to demonstrate that a suitable replacement water 
source is available if identified supplies are impacted. Tri-State also 
indicated that compensation in lieu of water supply replacement should 
not be allowed.
    We believe Tri-State's concerns with identifying the actual and 
potential water supplies in a permit are answered by the Pennsylvania 
program at 25 Pa. Code 89.34(a) which requires operators to submit the 
results of a groundwater inventory of existing wells, springs and other 
groundwater resources for the proposed permit and adjacent areas and by 
25 Pa. Code 89.36(c) which provides that the operation plan shall 
include a description of the measures which will be taken to replace 
water supplies which are contaminated, diminished or interrupted by 
underground mining activities. We approved these provisions in our 
December 27, 2001, final rule (66 FR at 67031 and 67032). In providing 
for protection of water resources, the Federal regulations allow 
operators to affect drinking, domestic or residential water supplies as 
long as temporary and permanent water supply replacements are promptly 
provided. Regarding Tri-State's comment on compensation in lieu of 
water supply replacement, please see our response to 30 CFR 
938.16(nnnn), (oooo), (qqqq), (rrrr) shown earlier in this rulemaking.
    30 CFR 938.16(aaaaaa). Compensation in lieu of water supply 
replacement--relief of liability under voluntary agreements.
    PCA commented (Administrative Record No. PA 841.84) that it opposed 
the proposed resolution of this required amendment to the extent that 
it is based on superseding of Section 5.2(h) of BMSLCA. We addressed 
PCA's concerns regarding superseding of Section 5.2(h) of BMSLCA in a 
final rule published elsewhere in today's Federal Register (see our 
final rule regarding PA-141-FOR).
    30 CFR 938.16(bbbbbb). ``Underground mining operations'' and 
notification of mining.
    We received no comments in opposition to the proposed resolution of 
this required amendment.

Comments on PADEP's ancillary changes

    As we noted above, PADEP proposed some changes to its regulations 
at 25 Pa. Code Chapters 86 and 89 that we did not specifically require 
in our December 27, 2001, final rule. We received the following 
comments regarding these changes:
    Comments on the definitions of EPAct structures and EPAct water 
supplies:
    The legal counsel for Representative William DeWeese of Greene 
County (Administrative Record No. PA 841.89) indicated dissatisfaction 
with the distinction between EPAct and non-EPAct structures. She 
indicated that all structures should be treated equally and that EPAct 
structures should retain the same protections as non-EPAct structures. 
We understand these concerns. However, the Federal standard for review 
of State program amendments is whether they are no less effective than 
the Federal counterparts. In this case, PADEP's use of the definition 
of EPAct structures will insure protections that are no less effective 
than the Federal protections for these structures. Accordingly, the 
Federal regulations require that we approve this definition.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and Section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Pennsylvania program 
(Administrative Record No. PA 841.66). On September 26, 2003 
(Administrative Record No. PA 841.69), MSHA's Wilkes Barre, 
Pennsylvania, office wrote us indicating that it did not have any 
comments or concerns with the amendment. On October 21, 2003 
(Administrative Record No. PA 841.86), MSHA's Arlington, Virginia, 
office wrote to us noting that there appears to be no conflict with the 
Mine Safety and Health Administration's regulation.

Environmental Protection Agency (EPA) Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from EPA (Administrative Record No. PA 841.66). EPA responded 
on October 14, 2003, (Administrative Record No. PA 841.81) indicating 
that it has determined that there are no apparent inconsistencies with 
the Clean Water Act or other statutes and regulations under its 
jurisdiction. However, EPA further indicated that it is concerned about 
subsidence impacts on streams due to high extraction underground mining 
methods. EPA observed that some headwater streams have lost water due 
to subsidence cracks in stream beds causing the streams to dry up at 
times and changes to flow patterns. EPA encourages utilization of 
mining techniques that can minimize these effects or, in the 
alternative, mitigation

[[Page 71550]]

measures that restore streams to premining conditions.
    While EPA's comments regarding streams are beyond the scope of the 
current rulemaking, we appreciate its interest in the mining program. 
We will forward these concerns to PADEP.

V. OSM's Decision

    Based on the above findings, we approve the amendment Pennsylvania 
sent to us on August 27, 2003, and as revised on September 3, 2003. We 
are approving the rules proposed by Pennsylvania with the provision 
that they be fully promulgated in substantively identical form to the 
rules submitted to, and reviewed by, OSM and the public. We are also 
removing the required amendments at 30 CFR 938.16(hhhh) through and 
including (bbbbbb). With regard to those required amendments which 
required removal of, or modification to, sections of BMSLCA, we are now 
approving those sections that were formerly disapproved to the extent 
noted in this final rule and the final rule also published in today's 
Federal Register regarding supersession of certain parts of BMSLCA.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 938.12, 938.15 and 938.16 which codify decisions 
concerning the Pennsylvania program. We find that good cause exists 
under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. 
Section 503(a) of SMCRA requires that the State's program demonstrate 
that the State has the capability of carrying out the provisions of the 
Act and meeting it purposes. Making this regulation effective 
immediately will expedite that process. SMCRA requires consistency of 
State and Federal standards.

VI. 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 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, and 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. 
Pennsylvania does not regulate any Native Tribal lands.

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 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 government 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 
Pennsylvania 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

[[Page 71551]]

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 
Pennsylvania 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 
unfounded mandate.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 26, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
    For the reasons set out in the preamble, 30 CFR part 938 is amended 
as set forth below:

PART 938--PENNSYLVANIA

0
1. The authority citation for part 938 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


Sec. Sec.  938.12, 938.15, 938.16  [Amended]

0
2. Section 938.12 is amended as follows: Paragraphs (a)(2), (a)(3), 
(a)(4), (a)(7), (a)(8), (a)(9) and (a)(10) are removed and reserved. 
Paragraphs (a)(14) through and including (a)(30) are removed.

0
3. Section 938.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
August 27, 2003......................  December 9, 2004.......  25 Pa. Code 86.1 modification of definition of
                                                                 underground mining activities, 86.151(b)(2),
                                                                 86.152(a), 89.5, Addition of definitions of
                                                                 EPAct structures and EPAct water supplies;
                                                                 removal of definition of permanently affixed
                                                                 appurtenant structures; modification of
                                                                 definitions of underground mining activities
                                                                 and underground mining operations, 89.141(d),
                                                                 89.142a(a), (c) through (i), 89.143a(a), (c)
                                                                 and (d), 89.144a(a) and (b), 89.145a(a), (b),
                                                                 (e) and (f), 89.146a(c)(2), and 89.152(a) and
                                                                 (b).
                                                                In BMSLCA, Sections 5.2(b)(2), 5.2(d),
                                                                 5.2(e)(2), 5.2(i), 5.3(a), 5.3(b), 5.3(c),
                                                                 5.5(c), 5.5(f), 5.6(c), and 5.6(d).
----------------------------------------------------------------------------------------------------------------

Sec.  938.16  [Amended]

0
4. Section 938.16 is amended by removing paragraphs (hhhh) through and 
including (bbbbbb).

[FR Doc. 04-26928 Filed 12-8-04; 8:45 am]
BILLING CODE 4310-05-P