RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 86]
Area Unsuitable for Surface Mining Activities; Squaw Run
[26 Pa.B. 5960] The Environmental Quality Board (Board) by this order amends § 86.130(b) (relating to areas designated as unsuitable for mining). The amendment adds paragraph (17) designating a 450-acre tract of land located in Slippery Rock and Wayne Townships, Lawrence County, as unsuitable for surface mining operations.
This order was adopted by the Board at its meeting of August 20, 1996.
A. Effective Date
This amendment will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Person
For further information, contact Roderick A. Fletcher, P.E., Director, Bureau of Mining and Reclamation, Room 209, Executive House, P. O. Box 8461, Harrisburg, PA 17105-8461 (717) 787-5103 or Joseph Pizarchik, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T relay service by calling (800) 654-5984 (T.D.D. users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
This final rulemaking is being made under the authority of the following acts: section 4.5(b)(3) of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. § 1396.4e(b)(3)); section 6.1(b)(3) of the Coal Refuse Disposal Control Act (52 P. S. § 30.56a(b)(3)); and section 315(i)(3) of The Clean Streams Law (35 P. S. § 691.315(i)(3)) which all authorize designation of an area as unsuitable for mining if mining will affect renewable resource lands and result in substantial loss or reduction of productivity of a water supply, aquifer and aquifer recharge areas; and section 4.2(a) of SMCRA (52 P. S. § 1396.4b(a)) which provides for general rulemaking authority; section 3.2(a) of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b(a)), which authorizes adoption of rules and regulations; section 5 of The Clean Streams Law (35 P. S. § 691.5), which authorizes adoption of rules and regulations; and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20) which authorizes the Board to promulgate the rules and regulations as may be determined by the Board to be necessary for the proper performance of the work of the Department; and section 1930-A of The Administrative Code of 1929 (71 P. S. § 510-30) which authorizes the Board to designate an area as unsuitable for mining.
D. Background and Summary
Section 522 of the Federal Surface Mining Control and Reclamation Act (30 U.S.C.A. § 1272) requires each state seeking primary jurisdiction from the Federal government to regulate surface coal mining to establish a procedure for the designation of areas as unsuitable for surface mining operations. The statutory authority for this procedure was created in the 1980 amendments to the authorizing acts as part of the Commonwealth's effort to obtain primacy over the regulation of coal mining. On October 10, 1980, the Board adopted Chapters 86--90 as part of the Commonwealth's effort to obtain primacy. These regulations were published at 10 Pa.B. 4789 (December 20, 1980). Chapter 86, Subchapter D (relating to areas unsuitable for mining) contains the Department's regulations for procedures and criteria for the designation of areas as unsuitable for surface mining operations. Several technical amendments were made to Subchapter D by the Board on April 20, 1982, and published at 12 Pa.B. 2473 (July 31, 1982). The Commonwealth obtained primacy on July 30, 1982 (47 FR 13050), and Chapters 86--90 went into effect on July 31, 1982 (12 Pa.B. 2382).
Under this legal authority, the Board has designated 16 areas as unsuitable for surface mining operations. For further information, see § 86.130(b)(1)--(16) published at 23 Pa.B. 5274 (October 30, 1993).
A petition requesting that a 450-acre tract of land located in Slippery Rock and Wayne Townships, Lawrence County, be designated as unsuitable for surface mining operations was received on May 24, 1993. The petition was submitted by Carl Thalgott and Dale Mackey who own, or have interests in, properties located within the petition area.
The petitioners alleged that private water supply sources, within the petition area, have been adversely affected by previous surface mining operations which caused degradation of groundwater aquifers and that further surface mining would cause additional losses in quality and quantity of water supplies for which no suitable replacements are available.
The Department conducted a study of the petition area and the petitioners' allegations of fact. The results of this study are presented in a document entitled ''A Petition to Designate Areas Unsuitable for Mining, Petition # 37939901, Squaw Run, Slippery Rock and Wayne Townships, Lawrence County.'' The findings of the technical study are as follows:
Wells and springs, which derive recharge from aquifers at or above the Middle Kittanning coal seam, have high potential to be degraded by surface mining operations.
Private water wells have been degraded by surface mining to the point of requiring the mine operator to replace the wells.
A surface mining permit application to mine within the petition area was denied by the Department, partly because no suitable replacements for private water supplies were identified for wells, which could be affected by surface mining operations.
In light of those findings, the Board proposed to designate, by regulation, the 450-acre tract of land as unsuitable for all types of surface mining operations.
The proposed recommendation concerning this petition was presented to the Mining and Reclamation Advisory Board (MRAB) at its October 13, 1994, meeting where it was discussed. This final rulemaking was discussed by the MRAB at its meeting of April 25, 1996, and was approved for presentation to the Board.
The designation of this area as unsuitable for all surface mining operations provides assurance to the residents of the petition area that their private water supplies will not be degraded by further surface mining operations within the petition area.
E. Summary of Comments and Responses on the Proposed Rulemaking
Comments in support of the proposed rulemaking were received from the petitioners, Carl Thalgott and Dale Mackey. The petitioners cite the potential loss or degradation of private water supply sources if further mining were to occur in this area. The Department agrees with these comments and recommends designation of the petition area as unsuitable for all types of surface mining operations.
There were no comments in opposition to the proposed rulemaking.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulation.
Benefits
The amendment will benefit persons who have property interests or reside within the area proposed for designation as unsuitable for surface mining operations in that further surface and groundwater degradation due to surface mining operations will not occur.
The designation process also serves to aid the planning of coal operators who might otherwise have considered surface mining in this area. The Department may not issue permits where mining would adversely affect a water supply, unless the applicant shows the availability of an equivalent replacement supply. The Department's current policy on water supply replacement provides that, unless the owner of the property specifically agrees to a replacement supply of lesser quality, the replacement supply must be of equal or better quality than the original supply. The wells within the petition area associated with the Middle Kittanning coal have the potential to be degraded by surface mining. Replacement wells, which are developed on deeper aquifers, are prone to elevated iron and manganese concentrations and objectionable sulfide odor. Replacement wells would require perpetual treatment and maintenance costs to produce water suitable for domestic use.
Compliance Costs
The designation will preclude mining of approximately 1.158 million tons of Middle Kittanning coal, valued at approximately $28 million, based on a market value of $24 per ton. Mining of this coal would provide 356 employe-years of direct employment and 712 employe-years of support employment, at least some of which would come from the local labor market. For the purpose of calculating these costs, it was assumed that the coal could be extracted by surface mining methods and that the coal was laterally persistent throughout the petition area. These estimates, therefore, represent a liberal interpretation of surface mineable reserves within the area proposed for designation.
An operator who adversely affects a water supply would be responsible for the costs associated with well replacement and treatment. Designation of the petition area as unsuitable for mining will help operators avoid these costs.
Because of the failure of coal operators to demonstrate that suitable alternate private water supplies are available within the petition area, it is unlikely that the Department would issue permits for surface mining in this area if it was not designated unsuitable for surface mining operations.
Compliance Assistance Plan
The amendment prohibits surface mining operations within the petition area. Aside from public notification of the regulation, no compliance assistance is anticipated.
Paperwork Requirements
The only paperwork requirements imposed by the amendment are those necessary to make operators and Department personnel aware of the location of the designated area. Copies of the amendment containing a description of the area and a map of the location will be held on file at the appropriate District Office and at the Bureau of Mining and Reclamation Office in Harrisburg, PA.
G. Sunset Review
This regulation will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the notice of proposed rulemaking, published at 25 Pa.B. 4773 (November 4, 1995), on October 25, 1995, to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing this final-form regulation, the Department has considered the comments received from IRRC and the public. No comments were received from the Committees.
The final-form regulation was deemed approved by the House and Senate Committees on October 7, 1996. IRRC met on October 17, 1996, and approved the final-form regulation in accordance with section 5(c) of the Regulatory Review Act.
I. Findings of the Board
The Board finds that:
(1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and the comments were considered.
(3) This amendment does not enlarge the purpose of the proposal published at 25 Pa.B. 4773.
(4) This amendment is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
J. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 86, are amended by amending § 86.130 to read as set forth in Annex A, with ellipses referring to the existing text of the regulation.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
Chairperson(Editors Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 5289 (November 2, 1996). See 26 Pa. B. 5962 (December 14, 1996) for a document concerning this subject.)
Fiscal Note: Fiscal Note 7-292 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
CHAPTER 86. SURFACE AND UNDERGROUND COAL MINING: GENERAL
Subchapter D. AREAS UNSUITABLE FOR MINING § 86.130. Areas designated as unsuitable for mining.
* * * * * (b) The following is a list of descriptions of areas which are unsuitable for all or certain types of surface mining operations and where all or certain types of surface mining operations will not be permitted:
* * * * * (17) All types of surface mining operations within a tract of 450 acres located in Slippery Rock and Wayne Townships, Lawrence County described as follows:
Beginning at the intersection of Township Road T-347 and Township Road T-472; then in a northerly direction following Township Road T-472 for a distance of approximately 4,800 feet to the Wayne Township and Slippery Rock Township boundary line; then in a westerly direction following the township line for a distance of approximately 800 feet to the southwest corner of a land parcel owned, or formerly owned, by Edris Ann Thalgott; then in a northerly direction following the Edris Ann Thalgott property line for a distance of approximately 2,050 feet to the southwest corner of a land parcel owned, or formerly owned, by Lois Mackey; then following the Lois Mackey property line in a northerly direction for a distance of approximately 950 feet to the intersection of the Lois Mackey property line with State Road SR 2024; then in an easterly direction following State Road SR 2024 for a distance of approximately 2,100 feet to the intersection with the southwest corner of a land parcel owned, or formerly owned, by Dale Mackey; then in a northerly direction following the Dale Mackey property line for a distance of approximately 1,650 feet to the northwest corner of the Dale Mackey property; then in an easterly direction following the Dale Mackey property line for a distance of approximately 600 feet to the northeast corner of the Dale Mackey property; then following the Dale Mackey property line in a southerly direction for a distance of approximately 1,250 feet to the Dale Mackey property line intersection with the northeast corner of a land parcel owned, or formerly owned, by Richard E. Michaels; then following the Richard E. Michaels property line in a southerly direction for a distance of approximately 250 feet to the Richard E. Michaels property line intersection with State Road SR 2024; then following Township Road T-478 in a southerly direction for a distance of approximately 7,200 feet to the intersection of Township Road T-478 with Township Road T-347; then in a westerly direction following Township Road T-347 for a distance of approximately 2,000 feet to the point of origin.
[Pa.B. Doc. No. 96-2090. Filed for public inspection December 13, 1996, 9:00 a.m.]
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