Prominent Section 106 Cases:
Permit Modification for Mining under the Thomas Kent, Jr.,
Read the latest on this case
Agency: Office of Surface Mining
Criteria for Council 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
In October 2000, the Office of Surface Mining (OSM) determined that the
permit issued by the Pennsylvania Department of Environmental Protection
(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 farmís historic properties through subsidence.
Thomas Kent, Jr. Farm, Greene County,
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. Since then, OSM
has continued to consult with the consulting parties to develop a
Memorandum of Agreement (MOA) that recognizes its position, yet still
provides for additional mitigation that may be negotiated. The Council is
currently preparing comments on a draft MOA by OSM.
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 State Historic Preservation Office (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 4.5 feet is expected, and
Preservation Pennsylvania (the statewide non-profit) has 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
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 de-listed in response to an objection petition filed by
the mining company as owner of the propertyís 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
Under the Federal Surface Mining Control and Reclamation Act of 1977
(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 are the Council, 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 has been on whether the longwall mining,
which will pass directly beneath the farm structures, will result in
irreparable damage, and, if so, whether proposed repairs or rehabilitation
can occur in such a manner to preserve the propertyís 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. The Council questioned OSM about
whether PADEPís actions foreclosed the opportunity for consulting parties
to consider alternatives. Further, there was concern about OSMís ability
to execute a binding MOA since the mining company already possesses the
permit it needs to mine.
In response, OSM asked PADEP to investigate the concerns raised
regarding inadequate protection of historic properties. PADEP alleged that
it did not have authority to delay issuance of permits or condition them
subject to OSMís compliance with Section 106.
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
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
Staff contact: Charlene
Posted March 21, 2001