§ 89.142a. Subsidence control: performance standards.
(a) General requirements. Underground mining operations shall be planned and conducted in accordance with the following:
(1) The subsidence control plan required by § 89.141(d) (relating to subsidence control: application requirements) and the postmining land use requirements in § 89.88 (relating to postmining land use).
(2) The performance standards in subsections (b)—(j).
(3) Underground mining will not be authorized beneath structures where the depth of overburden is less than 100 feet (30.48 meters), unless the subsidence control plan demonstrates to the Department’s satisfaction that the mine workings will be stable and that overlying structures will not suffer irreparable damage.
(4) The mine operator shall adopt measures to maximize mine stability. This subsection does not prohibit planned subsidence in a predictable and controlled manner or the standard method of room and pillar mining.
(b) Structure surveys.
(1) The operator shall conduct premining surveys of all structures listed under subsection (f)(1). The operator is relieved of the duty to conduct a premining survey if the operator has complied with the notice procedure in paragraph (2) and the landowner denies the operator access to conduct a premining survey or the structure was constructed less than 15 days before mining will enter the area described in subparagraph (ii).
(i) The premining survey shall document the existing condition of each structure and for structures that are recognized as historically or architecturally significant, the presence of any architectural characteristics that will require special craftsmanship to replace.
(ii) The premining survey shall be completed prior to the time that a structure falls within a 30° angle of draw of underground mining, or a larger area as required by the Department.
(iii) The results of a premining survey shall be submitted to the landowner within 30 days of completion and to the Department upon Department request.
(iv) The operator may not provide the results of a premining survey to persons other than the structure owner and the Department without the consent of the structure owner.
(v) The operator shall store survey results in a secure location and shall limit access to the results to authorized personnel.
(2) The operator will be relieved of the duty to conduct a premining survey if the operator submits evidence to the Department that:
(i) The operator notified the owner by certified mail or personal service of the landowner’s rights as set forth in sections 5.4—5.6 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.5d—1406.5f).
(ii) The operator attempted to conduct a survey.
(iii) The landowner failed to provide the operator with access to the site to conduct a survey within 10 days of receipt of the operator’s notice of intent to conduct the survey.
(3) A landowner, who is notified of an operator’s intent to conduct a premining or postmining survey in accordance with the notification procedures described in paragraph (2), should provide the operator access to the site for the purpose of conducting the survey within the time frame specified in paragraph (2) so the operator can do the following:
(i) Document the premining condition of the structure, assess the potential for material damage and plan appropriate damage minimization measures.
(ii) Determine the extent of subsidence damage and the scope of necessary repairs.
(c) Restrictions on underground mining.
(1) Unless the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the reasonably foreseeable use of the structures and features listed in subparagraphs (i)—(v), no underground mining may be conducted beneath or adjacent to:
(i) Public buildings and facilities.
(ii) Churches, schools and hospitals.
(iii) Impoundments with a storage capacity of 20 acre-feet (2.47 hectare-meters) or more.
(iv) Bodies of water with a volume of 20 acre-feet (2.47 hectare-meters) or more.
(v) Bodies of water or aquifers which serve as significant sources to public water supply systems.
(2) The measures adopted by the operator to comply with paragraph (1) shall consist of one of the following:
(i) Providing a support area beneath the structure or surface feature to be protected where coal extraction is limited to 50%, and the following:
(A) The support area shall consist of pillars of coal of a size and in a pattern which maximizes bearing strength, and which is approved by the Department.
(B) For purposes of this section, the support area shall be rectangular in shape and determined by projecting a 15° angle of draw from the surface to the coal seam beginning 15 feet (4.57 meters) from the sides of the structure. For a structure on a slope of 5% or greater, the support area on the downslope side of the structure shall be extended an additional distance determined by multiplying the thickness of the overburden by the percentage expressed as a decimal of the surface slope. A pillar lying partially within the support area shall be considered part of the support area and shall be consistent with the other support pillars in size and pattern.
(C) The area lying between two support areas shall be treated as a support area, when the distance between the two support areas is less than the depth of the overburden.
(D) If the Department determines there is a potential for material damage or reducing the reasonably foreseeable use of a structure or feature listed in paragraph (1), the Department may limit the percentage of coal extracted under or adjacent to the structure or feature as necessary to minimize the potential for material damage or reduction in reasonably foreseeable use.
(ii) Backfilling or backstowing of voids.
(iii) Leaving areas in which no coal extraction will occur.
(iv) Taking measures on the surface to prevent material damage or reduction in the reasonably foreseeable use of the structure or feature.
(v) Demonstrating that the structure or feature will not be materially damaged through an engineering report or a report of the effects of mining under similar conditions.
(vi) Initiating a monitoring program within a specified area to detect surface movement resulting from the underground mining. The program shall entail placing monitors sufficiently in advance of the underground mining so that if exces sive subsidence occurs the underground mining can be stopped before the protected structures or features are damaged. In calculating the area to be monitored, a 30° angle of draw shall be used.
(3) If the measures implemented by the operator cause material damage or reduce the reasonably foreseeable use of the structures or features listed in paragraph (1), the Department may suspend mining under or adjacent to these structures or features until the subsidence control plan is modified to ensure prevention of further material damage to these structures or features.
(d) Protection of certain EPACT structures and agricultural structures.
(1) For EPACT structures other than noncommercial buildings protected under subsection (c):
(i) If an operator employs mining technology that provides for planned subsidence in a predictable and controlled manner, the operator shall take necessary and prudent measures, consistent with the mining method employed, to minimize material damage to the extent technologically and economically feasible to the structure, except when one of the following applies:
(A) The structure owner has consented, in writing, to allow material damage.
(B) The costs of these measures would exceed the anticipated cost of repairs and the anticipated damage will not constitute a threat to health or safety.
(ii) If an operator employs mining technology that does not result in planned subsidence in a predictable and controlled manner, the operator shall adopt measures consistent with known technology to prevent subsidence and subsidence-related damage to the extent technologically and economically feasible to the structure. Measures may include, but are not limited to:
(A) Backstowing or backfilling of voids.
(B) Leaving support pillars of coal.
(C) Leaving areas in which no coal is removed, including a description of the overlying area to be protected by leaving coal in place.
(D) Taking measures on the surface to prevent or minimize material damage or diminution in value of the surface.
(E) Other measures approved by the Department.
(2) If the Department determines and so notifies a mine operator that a proposed mining technique or extraction ratio will result in irreparable damage to a structure enumerated in subsection (f)(1)(iii)—(v), the operator may not use the technique or extraction ratio unless the building owner, prior to mining, consents to the mining or the operator, prior to mining, takes measures approved by the Department to minimize or reduce impacts resulting from subsidence to these structures.
(3) Nothing in paragraph (1) or (2) prohibits planned subsidence in a predictable and controlled manner or the standard method of room and pillar mining.
(e) Repair of damage to surface lands. To the extent technologically and economically feasible, the operator shall correct material damage to surface lands resulting from subsidence caused by the operator’s underground mining operations.
(f) Repair of damage to structures.
(1) Repair or compensation for damage to certain structures. Whenever underground mining operations conducted on or after August 21, 1994, cause damage to any of the structures listed in subparagraphs (i)—(v), the operator responsible for extracting the coal shall promptly and fully rehabilitate, restore, replace or compensate the owner for material damage to the structures resulting from the subsidence unless the operator demonstrates to the Department’s satisfaction that one of the provisions of § 89.144a (relating to subsidence control: relief from responsibility) relieves the operator of responsibility.
(i) Buildings that are accessible to the public including, but not limited to, commercial, industrial and recreational buildings and all structures that are securely attached to the land surface and adjunct to or used in conjunction with these buildings, including:
(A) Garages.
(B) Storage sheds and barns.
(C) Greenhouses and related buildings.
(D) Customer-owned utilities and cables.
(E) Fences and other enclosures.
(F) Retaining walls.
(G) Paved or improved patios.
(H) Walks and driveways.
(I) Septic sewage treatment facilities.
(J) Inground swimming pools.
(K) Lot drainage and lawn and garden irrigation systems.
(ii) Noncommercial buildings customarily used by the public, including, but not limited to, schools, churches and hospitals.
(iii) Dwellings which are used for human habitation and permanently affixed appurtenant structures or improvements. In the context of this paragraph, the phrase ‘‘permanently affixed appurtenant structures or improvements’’ includes, but is not limited to, structures adjunct to or used in conjunction with dwellings, such as:
(A) Garages.
(B) Storage sheds and barns.
(C) Greenhouses and related buildings.
(D) Customer-owned utilities and cables.
(E) Fences and other enclosures.
(F) Retaining walls.
(G) Paved or improved patios.
(H) Walks and driveways.
(I) Septic sewage treatment facilities.
(J) Inground swimming pools.
(K) Lot drainage and lawn and garden irrigation systems.
(iv) Barns and silos.
(v) Permanently affixed structures of 500 or more square feet (46.45 square meters) in area that are used for raising livestock, poultry or agricultural products, for storage of animal waste or for the processing or retail marketing of agricultural products produced on the farm on which the structures are located.
(2) Amount of compensation.
(i) If, rather than repair the damage, the operator compensates the structure owner for damage caused by the operator’s underground mining operations, the operator shall provide compensation equal to the reasonable cost of repairing the structure or, if the structure is determined to be irreparably damaged, the compensation shall be equal to the reasonable cost of its replacement except for an irreparably damaged agricultural structure identified in paragraph (1)(iv) or (v) which at the time of damage was being used for a different purpose than the purpose for which the structure was originally constructed. For such an irreparably damaged agricultural structure, the operator may provide for the reasonable cost to replace the damaged structure with a structure satisfying the functions and purposes served by the damaged structure before the damage occurred if the operator can affirmatively prove that the structure was being used for a different purpose than the purpose for which the structure was originally constructed.
(ii) The operator shall compensate the occupants with an additional payment for reasonable, actual expenses incurred during their temporary relocation, if the occupants of a damaged structure are required to relocate. The operator shall also compensate the occupants for other actual, reasonable incidental costs agreed to by the parties or approved by the Department.
(g) Protection of utilities.
(1) Underground mining operations shall be planned and conducted in a manner which minimizes damage, destruction or disruption in services provided by oil, gas and water wells; oil, gas and coal slurry pipelines; rail lines; electric and telephone lines; and water and sewerage lines which pass under, over, or through the permit area, unless otherwise approved by the owner of the facilities and the Department.
(2) The measures an operator may take to minimize damage, destruction or disruption in services protected by this subsection may include, but are not limited to, one or more of the following:
(i) A program for detecting subsidence damage and minimizing disruption in services.
(ii) A notification to the owner of the facility which specifies when underground mining beneath or adjacent to the utility will occur.
(iii) Providing support in accordance with the utility owner’s support rights.
(iv) Providing temporary or alternate service to customers.
(v) Demonstrating to the Department that subsidence will not materially damage the utility.
(3) A mine operator shall take measures to minimize damage to customer-owned gas and water service connections, unless the customer does not consent to the measures.
(4) The Department will suspend or restrict underground mining if it determines that mining beneath or adjacent to a utility will present an imminent hazard to human safety.
(h) Perennial streams.
(1) Underground mining operations shall be planned and conducted in a manner which maintains the value and reasonably foreseeable uses of perennial streams, such as aquatic life; water supply; and recreation, as they existed prior to coal extraction beneath streams.
(2) If the Department finds that the underground mining operations have adversely affected a perennial stream, the operator shall mitigate the adverse effects to the extent technologically and economically feasible, and, if necessary, file revised plans or other data to demonstrate that future underground mining operations will meet the requirements of paragraph (1).
(i) Prevention of hazards to human safety.
(1) The Department will suspend underground mining operations beneath urbanized areas; cities; towns; and communities and adjacent to or beneath industrial or commercial buildings; lined solid and hazardous waste disposal areas; major impoundments of 20 acre-feet (2.47 hectare-meters) or more; or perennial streams, if the operations present an imminent danger to the public.
(2) If the Department determines and so notifies the operator that a mining technique or extraction ratio will result in subsidence which creates an imminent hazard to human safety, the operator may not use the technique or extraction ratio unless the operator, prior to mining, takes measures approved by the Department to eliminate the imminent hazard to human safety.
(j) Prohibition. Underground mining is prohibited under an area which is not included within a subsidence control plan that has been submitted under § 89.141(d) and approved by the Department.
(k) Report of claim. Within 10 days of being advised of a claim of subsidence damage to a structure or surface feature, the operator shall provide the Department with a report of the claim which shall include the following information:
(1) The date of the claim.
(2) The name, address and telephone number of the owner of the structure, surface feature or surface land claimed to be damaged.
(3) The number assigned to the structure or feature under § 89.154(a) (relating to maps).
(l) Property rights. This section does not authorize the Department to adjudicate property rights disputes between mine operators and other parties.
Authority The provisions of this § 89.142a amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
Source The provisions of this § 89.142a adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial pages (313578) to (313584).
Notes of Decisions All Perennial Streams Protected
EHB correctly interpreted the plain language of mine subsidence control regulation that the Department has authority to regulate mining activity in order to protect the values and reasonably foreseeable uses of perennial streams, regardless of their size, including small perennial stream that had no name. UMCO v. Department of Environmental Protection, 938 A.2d 530, 537 (Pa. Cmwlth. 2007)
Construction
Preambles may be used to resolve an ambiguity in a regulation; however, preambles may not be used to create ambiguity where none exists, and in any case where a preamble is used as a tool to resolve an ambiguous law, the preamble is not controlling. The language in the preamble was not controlling because the regulatory language was clear. UMCO v. Department of Environmental Protection, 938 A.2d 530, 537 (Pa. Cmwlth. 2007)
Cross References This section cited in 25 Pa. Code § 89.5 (relating to definitions); 25 Pa. Code § 89.141 (relating to subsidence control: application requirements); 25 Pa. Code § 89.143a (relating to subsidence control: procedure for resolution of subsidence damage claims); 25 Pa. Code § 89.144a (relating to subsidence: relief from responsibility); and 25 Pa. Code § 89.154 (relating to maps).
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