The Environmental Quality Board (Board) proposes to amend Chapters 87 (relating to surface mining of coal) and 88 (relating to anthracite coal). These amendments address water supply protection/replacement (coal surface mining) and revegetation of previously disturbed areas.

The proposed amendments were adopted by the Board at its meeting of _______________, 1997.

A. Effective Date

These proposed amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.

B. Contact Persons

For further information contact Evan T. Shuster, Bureau of Mining and Reclamation, Room 203 Executive House, P.O. Box 8461, Harrisburg, PA 17105-8461, (717) 787­7846, or Joseph Pizarchik, Assistant Counsel, P.O. Box 8464, Bureau of Regulatory Counsel, Harrisburg, PA 17105-8464, (717) 787­7060. Persons with a disability may use the AT&T Relay Service by calling 1­800­654­5984 (TDD users) or 1­800­654­5988 (voice users). This proposal is available electronically through the DEP Web site (http://www.dep.state.pa.us).

C. Statutory Authority

These amendments are proposed under the rulemaking authority of Section 4.2(a) of the Surface Mining Conservation and Reclamation Act (52 P.S. §1396.4b(a)) which provides the Department`s general rulemaking authority, and Section 1920­A of the Administrative Code of 1929 (71 P.S. §510­20) which authorizes the Board to adopt regulations necessary for the Department to perform its work.

D. Background and Purpose

The Board is proposing to revise Chapters 87 and 88 to update the Department`s coal mining regulations in light of the amendments to the Surface Mining Conservation and Reclamation Act (SMCRA) by the act of December 18, 1992 (P.L. 1384, No. 173) (Act 173) and the act of May 22, 1996 (P.L. 232, No. 43) (Act 43).

Act 173 amended Section 4(a)(2)C of SMCRA relating to revegetation to establish minimum vegetative cover requirements for areas previously disturbed by surface mining activities (i.e. abandoned coal mine lands) and proposed for remining. Section 4.2(f)(1) was amended to extend the water supply replacement requirement to anyone who affects a supply while performing government-financed reclamation. Also, Section 4.2(f)(2) of SMCRA was amended by Act 173 and Act 43 to provide rebuttable presumption provisions concerning replacement of water supplies due to surface mining of coal. Section 4.2(f)(2), the presumption of liability provision, does not apply to persons engaged in government-financed reclamation contracts or to surface mining operations conducted under a mining permit issued by the Department before February 16, 1993.

Secondly, the amendments to §§87.119(a) and 88.10(a) are based on several Commonwealth Court and Environmental Hearing Board (EHB) rulings which clarify the water supply replacement requirements of the SMCRA and Department regulations. These clarifications address the character of the replacement water supply, including control, reliability and cost.

These amendments do not address water supply replacement requirements governing underground coal mining. Water supply replacement for underground coal mining will be addressed in other regulatory amendments.

E. Summary of Regulatory Requirements

As indicated in Section D of this preamble, these proposed changes are a result of amendments to the SMCRA and several court rulings. The following summary identifies the section of the regulations proposed for change along with a description of the specific change.

§§87.1 and 88.1 (Definitions)

A definition of "de minimis cost increase" is being added. The definition is needed when determining whether a replacement water supply is "adequate." This is explained in more detail below.

A definition of "water supply" is being added to §§87.1 and 88.1. The definition is not new language but is existing language that is being relocated from §§87.119 and 88.107.

A definition of "water supply survey" is being added to §§87.1 and 88.1 for the purpose of clarity. The language of Act 173 simply refers to a "survey". The term is used in the context of water supplies. What is being referred to is a "water supply survey," as opposed to some other type of survey such as a property survey, an archeological survey, etc. The definition of water supply survey also describes the contents of the survey. This clarification will serve the coal industry and the water supply owners by providing clear guidance regarding the requirements of the regulation.

§§87.119(a) and 88.107(a) (Water rights and replacement)

The phrase "or any person engaged in government-financed reclamation" has been added based on Sections 4.2(f)(1) and 4.8(g) of SMCRA which establish water supply replacement requirements for persons engaged in government-financed reclamation, including reclamation under a no-cost government-financed reclamation contract.

For years Section 4.2(f)(1) of SMCRA and §§87.119(a) and 88.107(a) have required an operator who affects a water supply to replace the affected supply with an alternate source "adequate in water quantity and quality for the purpose served by the supply." Neither the statute nor the regulation defined the term "adequate". This resulted in litigation. The resulting court decisions provide guidance in determining whether a replacement water supply is "adequate". The court decisions addressed increased operation and maintenance costs, increased maintenance and the control, accessibility, reliability and permanence of the replacement water supply. These sections are amended to incorporate these court decisions and clarify what is meant by "adequate" for the purposes of a restored or replaced water supply.

In Carlson Mining Co. v. DER, 639A.2d 1332 (Pa. Cmwlth 1994) and Carlson Mining Co. v. DER, EHB 91­547­E the courts addressed increased operating and maintenance costs of a restored or replacement water supply. The courts found that for a replacement water supply to be adequate, any increase in operation and maintenance costs must be de minimis. The coal company is permanently responsible for any increase in operation or maintenance costs that are not de minimis. The term "de minimis cost increase" is defined in §§87.1 and 88.1 and is addressed in these sections.

Other decisions have also dealt with cost differentials for water supplies. These cases are Gioia Coal Co. v. DER, 1986 EHB 82 and Buffy & Landis v. DER, 1990 EHB 1665. In Gioia, the EHB held that, unless operation and maintenance costs were "excessive", the Department could not require the operator to pay for the additional costs of the replacement supply. What would be "excessive" was not defined. In Buffy & Landis the EHB held that: "... (a) proposal for a replacement water supply cannot be considered as an alternative source of water adequate in quantity and quality unless it demonstrates that either the operation and maintenance costs for the proposed replacement source are substantially the same as the existing system and the existing supply's users agree to shoulder these costs or that the miner has included in its proposal a satisfactory method for compensating the users of the existing supply for the replacement supply's increased costs." Buffy & Landis. In Carlson the EHB found that, if they are more than a de minimis cost increase, the costs are excessive. The costs of the replacement supply was an annual increase of $200.24 and a five-fold increase between the costs of operating and maintaining the original supply and the replacement supply. They found these costs to be more than marginally higher and excessive.

De minimis cost increase has been defined in these regulations as an annual cost increase which is either less than 15% of the annual operating and maintenance costs of the previous supply or less than $60.00 per year. The factor of .15 times is based on the fact that multiple cost estimates for the same water supply routinely vary by a factor of at least 15%. This factor is clearly less than the five-fold increase which was found to be excessive in Carlson. The amount of $60.00 is also based on Carlson, where the amount of $200.24 was found to be excessive. Sixty dollars is less than three-tenths of the cost increase for Carlson and is an average of $5.00 per month, which is an amount less than typical discretionary expenditures for most households. The definition of de minimis given above is much less than the values disputed in Carlson and is intended to avoid disagreements over amounts that are essentially the same, or of insignificant difference.

The new provision concerning adequacy of the replacement supply in regards to maintenance, control, accessibility, reliability, and permanence is being added because of findings in the Carlson, Gioia, and Buffy & Landis decisions, plus the decision in Haydu v. DER & PBS Coals Co., Inc., 1994 EHB 826. In Gioia the EHB found that: "... the user of a replacement water supply--who originally had complete control over his supply--be able to avoid having the replacement supply cut off at any time by the acts of another person." In Buffy & Landis the EHB ruled that: "... when Buffy & Landis exclusively control their existing private sources of supply, the proposal for a community replacement source of water must demonstrate that Buffy & Landis retain substantially equal control over it or consent thereto, if it is to be judged an adequate replacement proposal." It should be noted here that the term "community replacement source of water" in Buffy & Landis refers to a well that was to service five homes, and does not refer to a public water supply. In Haydu the EHB found that: "... (t)o satisfy the requirements of §4.2(f) of the SMCRA, a replacement water supply: must have an adequate quantity and quality; must not be unreliable; must not require excessive maintenance; and must provide the property owner with as much control as he exercised over his previous supply."

§§87.119(b) and 88.107(b) (Presumption of liability)

Acts 173 and 43 added Sections 4.2(f)(2)-(7) to SMCRA which created a presumption of liability on the part of a surface mine operator or mine owner for pollution or diminution of public or private water supplies located within 1,000 feet (304.8 meters) of areas bonded and affected by coal mining operations, areas of overburden removal and storage and support areas except for haul and access roads. This provision is not applicable to persons engaged in government-financed reclamation contracts. Section 4.2(f) of SMCRA also contains 5 conditions which a surface mine operator or surface mine owner may use to rebut the presumption of liability. The same presumption of liability applies to surface mining activities which are not permitted by the Department.

It should be noted that, with or without a rebuttable presumption of liability, the Department will continue to carefully evaluate each instance of water supply contamination or diminution based on the best scientific and technical information available, prior to ordering a surface mine operator or mine owner to restore or replace a water supply.

§§87.119(c) and 88.107(c) (Defenses to the presumption)

The language for §§87.119(c)(1) and 88.107(c)(1) is intended to clarify the provisions of Section 4.2(f)(2)(ii) of SMCRA in two regards. First, the term "water supply user" has been added between "landowner" and "water supply company" to account for the possibility that the landowner and water supply user may be different persons. An example is when someone is renting a house owned by another person. Secondly, the term "reasonable access" is used in place of "access". The intent of this modification is to account for situations where an operator might need to spend considerable effort and money to gain physical access to a water supply. For example, a homeowner may have constructed a concrete patio over his wellhead. This language would also help protect homeowners from surface mine operators and mine owners proposing major disruptions and inconveniences to homeowners to gain access and to sample homeowners' wells.

§§87.119(d) and 88.107(d) (Notifying the Department)

These provisions require the surface mine operator or mine owner to provide the Department with all information pertaining to available defenses. This will allow the Department to evaluate any defenses to the presumption of liability available to the surface mine operator or mine owner. Doing so will enable the Department to avoid issuing erroneous orders and will save the operator and the Department expenses related to appeals of such orders.

§§87.119(e) and (f) and 88.107(e) and (f) (Replacement by the Department)

These subsections are being added to implement Section 4.2 (f)(3) of SMCRA. These requirements authorize the Department to restore or replace a water supply when the surface mine operator or mine owner fails to comply with an order issued by the Department to restore or replace a water supply which the Department determined had been affected by the operator. The requirements require the Department to recover incurred costs, including costs for providing a temporary water supply, from the surface mine operator or mine owner.

§§87.119(g) and 88.107(g) (Awarding costs)

These subsections, which reflect the provisions of Section 4.2(f)(5) of SMCRA, allow a surface mining operator or mine owner who provides a successful defense to the presumption of liability to seek recovery of reasonable costs from the Department. These costs include costs incurred for providing a temporary water supply, design, construction, restoration or replacement costs, attorney fees and expert witness fees.

§§87.119(h) and (i) and 88.107(h) and (i) (Other remedies for landowners)

The proposed language of these subsections reflect Section 4.2(f)(6) of SMCRA which allows a landowner, water supply user or water supply company who claims pollution or diminution of a water supply to seek other legal remedies than are provided for by Section 4.2(f) of SMCRA and these regulations. Subsection (i) in §§87.119 and 88.107 provide notice that the Department's authority to take other actions is not limited by those sections.

§§87.119(j) and 88.107(j) (Applicability)

These sections are being added to reflect Section 4.2(f)(7) of SMCRA which provides that the provisions relating to the presumption of liability for replacement of water supplies do not apply to surface coal mine permits issued before February 16, 1993.

§§87.147(b), 88.121(b) and 88.209(b) (Revegetation)

These sections are being revised to provide for a different vegetative cover requirement as authorized by Section 4(a)(2)(C) of SMCRA which allows the Department to approve a lesser vegetative cover requirement for areas previously disturbed by surface mining activities that were not reclaimed to the standards of SMCRA and Chapter 87 and 88 and are proposed for remining.

F. Benefits and Costs

Executive Order 1996­1 requires a cost/benefit analysis of these proposed regulations.

Benefits

The benefits of the proposed amendments are that water supplies within 1,000 feet of land affected by surface mining activities or within 1,000 feet of the surface coal mine permit boundary of a permit issued after February 16, 1993 should be replaced more expeditiously. In addition, the provisions relating to revegetation should provide some additional incentive for surface coal mine operators to remine previously mined and unreclaimed lands.

Compliance Costs

The proposed amendments impose no additional mandatory costs on the coal operator other than what would currently be required under the statutory provisions of SMCRA relating to rebutting a presumption of liability for replacement of water supplies affected by the mining activities which are within 1000 feet of the surface mine permit boundary or land affected by surface mining activities. The provisions relating to revegetation may slightly decrease reclamation costs to the coal operator. The Commonwealth`s costs of administering and enforcing these requirements will not change significantly beyond what would currently be required under the statutory provisions of SMCRA. The statutory provisions could significantly increase the Commonwealth`s costs should the Department be unsuccessful in defending appeals by mine operators of Department orders to replace water supplies.

Paperwork Requirements

The proposed amendments will not result in additional forms or reports. Some additional recordkeeping procedures will be necessary to implement Section 4.2(f).

G. Sunset Review

These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which it was intended.

H. Regulatory Review

Under Section 5(a) of the Regulatory Review Act (71 P.S. §745.5(a)), the Department submitted a copy of this proposed rulemaking on __________ to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department. A copy of this material is available to the public upon request.

If IRRC has any objections to any portion of the proposed regulation, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Department, the General Assembly and the Governor.

I. Public Comments

Written Comments - Interested persons are invited to submit written comments, suggestions or objections regarding the proposal to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA  17105-8477 (express mail: 15th Floor, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA 17101-2301). Comments received by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by ______________________ (within ____ days of publication in the Pennsylvania Bulletin). Interested persons may also submit a summary of their comments to the Board. The summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulations will be considered. The summary may not exceed one page in length and must also be received by ______________________ (within ____ days of publication in the Pennsylvania Bulletin).

Electronic Comments - Comments may be submitted electronically to the Board at regcomments@state.pa.us and must also be received by the Board by __________, 19___. A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within two working days, the comments should be retransmitted to ensure receipt.

J. Public Hearing

The Environmental Quality Board will hold 2 public hearings for the purpose of accepting comments on this proposal. They will be held at ______ p.m. on the following dates:

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Persons wishing to present testimony are requested to contact Sharon Freeman at the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA  17105­8477, 717­787­4526, at least one week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to ten minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.

Persons in need of accommodations as provided for in the Americans With Disabilities Act of 1990 should contact Sharon Freeman directly at 717­787­4526 or through the Pennsylvania AT&T Relay Services at 1­800­654­5984 (TDD) to discuss how the Department may accommodate their needs.

BY:

JAMES M. SEIF

Chairman

Environmental Quality Board