Home Working with Section 106 Section 106 in Action Archive of Prominent Section 106 Cases Pennsylvania: Thomas Kent, Jr., Farm

Pennsylvania: Permit Modification for Mining under the Thomas Kent, Jr., Farm, Greene County

Agency: Office of Surface Mining

Criteria for ACHP Involvement:

• The coordination of Section 106 review has raised a number of policy issues regarding the ability of the Office of Surface Mining to adequately meet the intent and spirit of Section 106 when mining activities are reviewed and approved by States pursuant to the Federal Surface Mining Control and Reclamation Act (Criteria 2).

• There is considerable public interest in the outcome of this case since a number of historic properties, in Greene County in particular and in Pennsylvania in general, are located above lands where corporations own the below-ground mineral rights (Criteria 3).

On March 13, 2001, ACHP entered into a Memorandum of Agreement (MOA) with the Office of Surface Mining (OSM), Pennsylvania State Historic Preservation Officer (SHPO), and the Pennsylvania Department of Environmental Protection (PADEP) allowing longwall mining to proceed under the Thomas Kent, Jr., Farm. The MOA was developed following protracted consultation with the property owners to identify and resolve the long-term preservation issues related to the underground mining.

Thomas Kent, Jr., Farm, Greene County, PA
(photo courtesy of Mrs. M. Laurine Williams)

Additionally, the MOA reflects, in part, the negotiations between the property owners and RAG Emerald Resources Corporation to ensure appropriate repairs are carried out should the damage to the property exceed that which is provided for in the PADEP-approved subsidence control and mitigation plan. As of early April 2001, ACHP was advised that the mitigation plan was being implemented, and that there appeared to have been limited immediate structural damage to the Thomas Kent, Jr., Farm.

The MOA executed for this undertaking is sig-nificant in that it illustrates the role that OSM can play when historic properties are adversely impacted by State mining activities covered under the Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA). It also demonstrates the importance of the State mining agency participating in Section 106 review since it has ultimate authority for issuing and modifying permits to mining companies and requiring them to take additional mitigation measures for historic properties.

In July 1999, RAG Emerald Resources Corporation submitted to PADEP an application to revise a coal mining permit in Greene County, Pennsylvania. In the context of the State historic preservation review process, the Pennsylvania SHPO made a finding of adverse effect for the permit revision since it would allow completion of two longwall panels beneath the 102-acre Thomas Kent, Jr., Farm. Longwall mining is a method that causes rapid surface subsidence, as temporary roof supports in a mine are removed as coal mining machinery moves forward. Subsidence of more than 4-1/2 feet was expected, and Preservation Pennsylvania (the statewide non-profit) placed the property on its most endangered properties list.

The Thomas Kent, Jr., Farm is eligible for listing in the National Register of Historic Places for its historic and architectural significance. The farm includes an 1851 Greek Revival main house, an 1850 frame barn and corn crib, and other ancillary buildings. It is representative of rural, mid-19th century farms in Greene County, and, despite modifications for modern use, retains a high degree of architectural integrity. The owners of the buildings were successful in having the farm listed in the National Register.

It should be noted, however, that in March 2000, the property was delisted in response to an objection petition filed by the mining company as owner of the property’s mineral rights. The National Register affirmed that the criteria for eligibility were still met despite the failure to obtain the necessary consent of the mining company for listing.

Under SMCRA, PADEP has been delegated primary jurisdiction over the regulation of surface coal mining activity. However, OSM remains responsible for compliance with Section 106 for permits issued by PADEP since OSM has not programmatically addressed Section 106 compliance in its review and approval of State Mining Plans under SMCRA.

In spring 2000, only after adverse effects were identified during the State historic preservation review process, OSM formally initiated the Section 106 consultation process with the Pennsylvania SHPO. Other participants in consultation were ACHP, PADEP, the mining company, the property owners, the National Trust for Historic Preservation, residents of Greene County, preservation experts, and representatives of the mining union. The focus of consultation was on whether the longwall mining, which will pass directly beneath the farm structures, would result in irreparable damage, and, if so, whether proposed repairs or rehabilitation could occur in such a manner to preserve the property’s historic integrity.

In July 2000, PADEP conditionally approved the requested permit modification for the Thomas Kent, Jr., Farm based primarily on a proposed subsidence control and mitigation plan. ACHP questioned OSM about whether PADEP’s actions foreclosed the opportunity for consulting parties to consider alternatives. In October 2000, OSM determined that the permit issued by PADEP for longwall mining under the Thomas Kent Jr., Farm was defective and was not a valid authorization to conduct mining since it would adversely affect the farm’s historic properties through subsidence.

Paradoxically, OSM also indicated that it believed that the proposed subsidence mitigation plan referenced in the permit would preserve the integrity of the historic farm. OSM then proceeded with consultation to develop a Memorandum of Agreement (MOA) recognizing that position, yet still providing for additional mitigation that may be negotiated.

Policy Highlights

This case highlights the inadequate provisions for addressing Section 106 review for SMCRA permits. Since these are Federal undertakings, OSM remains responsible for Section 106 compliance, but the lack of any programmatic approach results in confusion between the State and Federal processes. State Mining Plans, which must be reviewed and approved by OSM as a prerequisite of delegating permitting authority to the States, offer a potential vehicle to clarify and streamline completion of Section 106 for permitted activities. Absent building a process into these plans, Section 106 review for SMCRA permits probably will continue only on an ad hoc basis.

Staff contact: Charlene Dwin Vaughn

Winter 2001 report on this case

Updated June 6, 2002

Return to Top