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with Section 106 Section
106 in Action Archive
of Prominent Section 106 Cases Pennsylvania: Thomas Kent, Jr.,
Permit Modification for Mining under the Thomas Kent, Jr., Farm, Greene
Agency: Office of Surface
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
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
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
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
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 propertys 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 propertys 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
PADEPs 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 farms 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.
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
Winter 2001 report on this case
June 6, 2002
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