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Archive of Prominent Section 106 Cases:
Pennsylvania: Permit Modification for Mining under the Thomas Kent, Jr., Farm

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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 3).



Recent Developments

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



Thomas Kent, Jr. Farm, Greene County, PA








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.


Background

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 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 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 listing.

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.


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 Vaughn


Posted March 21, 2001


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