RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 86]
Criteria and Procedures for Designating Areas Unsuitable for Surface Mining Activities
[26 Pa.B. 5962] The Environmental Quality Board (Board) by this order amends Chapter 86 (relating to areas unsuitable for mining). The amendments clarify ambiguous language contained in Subchapter D (relating to areas unsuitable for mining) concerning the designation of areas as unsuitable for mining and correct several typographical errors.
This order was adopted by the Board at its meeting of August 20, 1996.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
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 (TDD users) or (800) 654-5988 (voice users). These amendments are available electronically through the Department of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
These amendments are adopted under the authority of the following provisions of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. §§ 1396.1--1396.19a): section 4.2(a) (52 P. S. § 1396.4b(a)), which provides general rulemaking authority; section 4.5 (52 P. S. § 1396.4e), which provides for the designation of an area as unsuitable for all or certain types of surface mining operations; and under the following provisions of the Coal Refuse Disposal Control Act (52 P. S. §§ 30.51--30.66): section 3.2(a) (52 P. S. § 30.53b(a)), which authorizes the adoption of rules and regulations; section 6.1 (52 P. S. § 30.56a), which provides for the designation of an area as unsuitable for all or certain types of coal refuse disposal operations; and under the following provisions of The Clean Streams Law (35 P. S. §§ 691.1--691.1001): section 5 (35 P. S. § 691.5), which authorizes the adoption of rules and regulations; section 315 (h)--(o) (35 P. S. § 691.315 (h)--(o)), which provides for the designation of an area as unsuitable for all or certain types of surface mining operations; and under Section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which authorizes the adoption of regulations necessary for the Department to perform its work.
D. Background
The statutes and regulations which contain the requirements and implementation procedures for the areas unsuitable for mining program are based on the premise that certain land areas should be designated unsuitable for mining to protect values which would be irretrievably lost or damaged by coal mining.
The criteria for designation of areas unsuitable for mining are separated into two distinct categories identified as mandatory and discretionary criteria.
The mandatory criterion (§ 86.122(a) (relating to criteria for designating lands as unsuitable)) requires designation in the event it can be demonstrated that reclamation of an area is not technologically and economically feasible. This criterion is narrow in scope and up to now has been used exclusively where coal mining would, in all probability, result in the production of acid mine drainage which would cause significant environmental damage.
The discretionary criteria (§ 86.122(b) (1)--(4)) are broad in scope and provide for protection of areas where reclamation could feasibly be accomplished under current laws, but where coal mining would be incompatible with existing land use or cause significant damage to or long term losses of important environmental features. There are four discretionary criteria which identify areas which may be designated unsuitable for mining where coal mining will: 1) be incompatible with land use plans; 2) affect fragile or historic lands; 3) affect renewable resource lands with loss or reduction of water supply or of food or fiber products; or 4) affect natural hazard lands where coal mining could endanger life or property.
Rulemaking was proposed to add language to § 86.122 (b)(1)--(4) to identify the specific criteria and circumstances that the Department would consider in exercising its discretion to recommend that an area be designated as unsuitable for mining.
In the processing of previous areas unsuitable for mining petitions, the Board received comments indicating that § 86.130 (b) (relating to areas designated as unsuitable for mining) referred to ''surface mining operations'' for which no regulatory definition exists. Elsewhere in Subchapter D, the activities subject to Subchapter D are referred to as ''surface mining activities,'' ''surface mining,'' ''surface coal mining,'' ''surface coal mining operations,'' ''surface mining operation,'' ''mining,'' ''mining operations'' or ''mining activities.'' With the exception of ''surface mining activities,'' these terms are not defined in the statutes or regulations. The Board therefore proposed that these terms be replaced with the term ''surface mining activities'' which was defined in § 86.101.
E. Summary of Comments and Responses on the Proposed Rulemaking
Numerous comments were received in opposition to the proposed amendments to the discretionary criteria in § 86.122(b). Several commentators believed that the changes would narrow and limit the protection of historic resources available under the existing language while other commentators believed the proposed changes broaden and expand the criteria and conditions under which the Department would consider designation of an area as unsuitable for mining. After an informal review of the proposed rulemaking, the Federal Office of Surface Mining Reclamation and Enforcement (OSMRE) indicated that the proposed rulemaking would be less effective than the corresponding Federal regulations.
In consideration of these comments, all proposed changes to the discretionary criteria in § 86.122(b)(1)--(4) have been deleted. The only changes being made to this subsection are replacement of the term ''surface mining activities,'' which was used in the proposed amendments, with the term ''surface mining operations'' for these final amendments as discussed in this Preamble.
Although the Board had not proposed revisions to the definition of the term ''surface mining activities'' in § 86.101, comments were received which questioned the legal and statutory authority for the definition and use of the term ''surface mining activities'' contained in § 86.101, because SMCRA and The Clean Streams Law which authorize designation of areas unsuitable for mining use the term ''surface mining operations.'' The Board had proposed that a variety of terms used in Subchapter D be replaced with the term ''surface mining activities'' which was also used in Subchapter D and was defined in § 86.101. The comments also pointed out that the term ''surface mining activities'' is defined differently in § 86.1 (relating to definitions) and the use of the same term in Subchapter D but with a different definition was confusing.
To understand the changes to the final rulemaking which were made in response to the comments concerning the legal bases for the definition of ''surface mining activities'' in § 86.101, it is necessary to know the history of the areas unsuitable for mining provisions. The following history also explains the legal basis for the § 86.101 definition and the use of the term ''surface mining operations'' in the final rulemaking.
The designation of areas as unsuitable for mining originated with the 1977 enactment of the Federal Surface Mining Control and Reclamation Act (Federal SMCRA) (30 U.S.C.A. § 1201 et seq.). The areas unsuitable for mining provisions are in section 522 of the Federal SMCRA (30 U.S.C.A. § 1272). These provisions apply to surface coal mining operations. Section 522 of the Federal SMCRA and the Federal regulations use the same term, ''surface coal mining operations,'' which is defined in section 701 of the Federal SMCRA and section 700.5 of the Federal regulations to mean:
(a) Activities conducted on the surface of lands in connection with a surface coal mine or, subject to the requirements of section 516 of the Act, surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. Such activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountain top removal, box cut, open pit, and area mining; the use of explosives and blasting; in situ distillation or retorting; leaching or other chemical or physical processing; and the cleaning, concentrating, or other processing or preparation of coal. Such activities also include the loading of coal for interstate commerce at or near the mine site. Provided, these activities do not include the extraction of coal incidental to the extraction of other minerals, where coal does not exceed 16 2/3 percent of the tonnage of minerals removed for purposes of commercial use or sale, or coal exploration subject to section 512 of the Act; and, Provided further, that excavation for the purpose of obtaining coal includes extraction of coal from coal refuse piles; and(b) The areas upon which the activities described in paragraph (a) of this definition occur or where such activities disturb the natural land surface. These areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entry ways, refuse banks, dumps, stock piles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or material on the surface, resulting from or incident to those activities.30 CFR 700.5, 30 U.S.C.A. § 1291(28). Section 516 of the Federal SMCRA is titled ''Surface effects of underground coal mining operations'' and regulates every surface effect of underground coal mining.
When OSMRE adopted regulations to implement the areas unsuitable for mining program on March 13, 1979, OSMRE stated:
Section 522 of the Act establishes a procedure to designate areas unsuitable for all or certain types of coal mining, thereby enabling the State and Federal governments to respond to conflicts which often arise between coal mining and the other uses of the land . . . . The petition process, the Federal coal lands review and the Congressional designations, except where specifically exempt, all apply to the surface effects of underground mining as well as surface mining.Under the provisions for designation citizens can petition the regulatory authority (DEP) to designate certain areas unsuitable for all or certain types of surface or underground coal mining. . . .44 FR at 14989. It was clearly OSMRE's position that the areas unsuitable for mining petition process applies to all types of surface and underground coal mining.
In 1980, the General Assembly made numerous changes to the Commonwealth's mining statutes to secure primary control over the regulation of coal mining in this Commonwealth. To secure primacy these changes had to make the Commonwealth's laws as effective as Federal law. These changes included the addition of areas unsuitable for mining provisions to section 4.5 of SMCRA, section 315(h)--(o) of The Clean Streams Law and section 6.1 of the Coal Refuse Disposal Control Act. These statutory changes, as well as necessary regulatory changes, were drafted by the Ad Hoc Task Force on Mining Legislation, a group of industry, environmental, government, public interest and labor representatives. The stated purpose of the Ad Hoc Task Force was to ''upgrade the existing Pennsylvania surface mining program where it was necessary to meet minimum Federal requirements while retaining the more stringent state requirements'' (10 Pa. B. 4789 (December 20, 1980)).
The provisions drafted by the Ad Hoc Task Force on Mining Legislation in 1980 and added to SMCRA by the General Assembly closely parallel Federal SMCRA; however, SMCRA used the term ''surface mining operations'' which it states is defined in section 3 of SMCRA (52 P. S. § 1396.3). Section 315(h) of The Clean Streams Law, which requires designation if reclamation is not technologically and economically feasible, also uses the term ''surface mining operations'' as defined in section 3 of SMCRA. Section 3 of SMCRA does not, however, contain a definition of ''surface mining operations.'' Presumably this omission was an oversight by the Ad Hoc Task Force on Mining Legislation and the General Assembly. Sections 315(i)--(o) of The Clean Streams Law, which provides for discretionary designations and the other areas unsuitable for mining provisions, use the term ''mining operations,'' which is also undefined.
The areas unsuitable for mining regulations developed by the Ad Hoc Task Force in 1980 paralleled the statutory language, but used a variety of terms for the activities covered by this program (10 Pa. B. 4789). The term most often used was ''surface mining'' which was defined in § 86.101 to mean:
The extraction of coal from the earth or from waste or stock piles or from pits or banks by removing the strata or material which overlies or is above or between them or otherwise exposing and retrieving them from the surface, including, but not limited to, strip, and auger mining, dredging, quarrying, and leaching and all surface activity connected with surface or underground coal mining including but not limited to exploration, site preparation, entry, tunnel, slope, drift, shaft and borehole drilling and construction and activities related thereto, and all activities involved in or related to underground coal mining which are conducted on the surface of the land, produce changes in the land surface, or disturb the surface, air or water resources of the area.Other terms used, which were not defined, included ''mining,'' ''surface mining operations,'' ''mining operations'' and ''surface coal mining operations.'' In 1982, the regulatory definition of ''surface mining'' in § 86.101 was amended to include ''coal refuse disposal,'' ''coal processing'' and ''coal preparation activities'' (12 Pa. B. 2473). These three terms were added to satisfy the Federal law requirement that State programs be at least as effective as the Federal law (30 U.S.C.A. § 1253) and because Subchapter D also implemented the areas unsuitable for mining provisions of the Coal Refuse Disposal Control Act.
In 1990, the Board amended §§ 86.102 and 86.103 and 86.121--86.124 by changing the term ''surface mining operations'' to ''surface mining activities.'' Section 86.101 was amended by changing the term ''surface mining'' to ''surface mining activities.'' The definition of the term ''surface mining'' in § 86.101 was not changed (20 Pa.B. 3383). Not all references to ''surface mining'' in Subchapter D were changed to ''surface mining activities.''
In the proposed rulemaking, the Board had proposed amending Subchapter D to switch the remaining references to ''surface mining'' to ''surface mining activities'' as defined in § 86.101. The Board also proposed changing the terms ''surface coal mining operations,'' ''surface mining operations'' and ''surface coal mining'' which appeared in Subchapter D to ''surface mining activities'' to, for the first time, provide for consistent use of terminology in Subchapter D. No changes were proposed to the § 86.101 definition of ''surface mining activities.''
In response to comments received on the proposed changes, Subchapter D is being modified to replace the term ''surface mining activities'' with ''surface mining operations.'' Surface mining operations is the term used in SMCRA authorizing the designation of areas as unsuitable for mining. The term ''surface mining operations'' is being used to be consistent with SMCRA. ''Surface mining operations'' is also defined in § 86.101 to remedy the lack of a definition in SMCRA. The definition of this term in § 86.101 of the regulations is the same definition developed by the Ad Hoc Task Force on Mining Legislation to obtain primacy, is consistent with the primacy requirements of Federal SMCRA, was approved by OSMRE in 1982 and has been in the regulations for over 15 years. Finally, while the definition of ''surface mining operations'' uses different words than are used in the Federal definition of ''surface coal mining operations'' they both cover the same activities.
Although no revisions to the existing definition in § 86.101 were proposed and it is believed that the definition is consistent with the statutory and legal requirements of the Federal program, OSMRE has been requested to provide clarification of the definition in the context of the ''surface effects'' of underground mining. Upon receipt of the requested clarification, any revisions to this existing definition which are found to be necessary will be addressed in future rulemaking.
The draft changes of the final rulemaking were presented to the Mining and Reclamation Advisory Board (MRAB) at its meeting of April 25, 1996. The MRAB approved the final-form rulemaking.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits
The amendments will clarify and eliminate ambiguities in the existing regulations which will benefit all persons who may wish to request that an area be designated as unsuitable for mining and would also benefit coal producers and coal owners who may be affected by this designation.
Compliance Costs
The amendments impose no direct or indirect costs on coal producers or the general public.
Compliance Assistance Plan
The amendments do not affect the way in which the regulations are implemented, so no compliance assistance plans are anticipated.
Paperwork Requirements
The amendments do not change any current regulatory procedures and do not impose any additional paperwork requirements. Areas which do not qualify for designation as unsuitable for mining remain subject to the permitting requirements of Commonwealth statutes and regulations.
G. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were 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 proposed rulemaking published at 25 Pa. B. 4767 (November 4, 1995) on October 25, 1995, to the Independent Regulatory Review Commission (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 these final-form regulations, the Department has considered all comments received from IRRC and the public. No comments were received from the Committees.
These final-form regulations were deemed approved by the House Environmental Resources and Energy Committee on October 7, 1996, and were deemed approved by the Senate Environmental Resources and Energy Committee on October 7, 1996. IRRC met on October 17, 1996, and approved the amendments in accordance with section 5(c) of the Regulatory Review Act.
I. Findings of the Board
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No 204) (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 all comments were considered.
(3) These amendments do not enlarge the purpose of the proposal published at 25 Pa.B. 4767.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
J. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa.Code Chapter 86, are amended by amending §§ 86.101--86.103 and 86.121--86.130 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(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 shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy 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 upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF
Chairperson(Editor's 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. 5960 (December 14, 1996) for a document concerning this subject.)
Fiscal Note: Fiscal Note 7-293 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
CHAPTER 86. SURFACE AND UNDERGROUND COAL MINING: GENERAL
Subchapter D. AREAS UNSUITABLE FOR MINING
CRITERIA AND PROCEDURES FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE MINING § 86.101. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Cemetery--An area of land where human bodies are interred.
Community or institutional building--A structure other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment.
Fragile lands--Geographic areas containing natural, ecologic, scientific or esthetic resources that could be damaged or destroyed by surface mining. Examples include, but are not limited to, valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, National Natural Landmark sites, areas where mining may cause flooding, environmental corridors containing a concentration of ecologic and esthetic features, areas of recreational value due to high environmental quality and buffer zones adjacent to the boundaries of areas where surface mining operations are prohibited under section 4.5(h) of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4e(h)).
Historic lands--Historic or cultural districts, places, structures or objects, including archaeological and paleontological sites, National Historic Landmark sites, sites listed or eligible for listing on a State or National Register of Historic Places, sites having religious or cultural significance to native Americans or religious groups or sites for which historic designation is pending.
Natural hazard lands--Geographic areas in which natural conditions exist which pose, or as a result of surface mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, severe wind or soil erosion, frequent flooding, avalanches and areas of unstable geology.
Public building--A structure that is owned by a public agency or used principally for public business, meetings or other group gatherings.
Public park--An area dedicated or designated by a Federal, State or local agency for public recreational use, whether or not the use is limited to certain times or days, including land leased, reserved or held open to the public because of that use. For the purposes of this subchapter, local agency includes nonprofit organizations owning lands which are dedicated or designated for public recreational use.
Publicly owned park--A public park owned by a Federal, State or local governmental agency.
Renewable resource lands--Aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.
Significant recreational, timber, economic or other values incompatible with surface mining--Significant values which could be damaged by, and are not capable of existing together with, surface mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on offsite areas which could be affected by mining. Values to be evaluated for their importance include:
(i) Nature recreation, including hiking, boating, camping, skiing, fishing, hunting or other related outdoor activities.
(ii) Timber management and silviculture.
(iii) Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce.
(iv) Scenic, historic, archaeologic, esthetic, fish, wildlife, plants or cultural interests.
Substantial legal and financial commitments in a surface mining operation--Significant investments that have been made prior to January 4, 1977, on the basis of a long-term contract in power plants, railroads, mineral handling, preparation, extraction or storage facilities and other capital-intensive activities. Costs of acquiring the mineral in place or of the right to mine it without an existing mine are not sufficient commitments, standing alone, to constitute substantial legal and financial commitments.
Surface mining operations--The extraction of coal from the earth or from waste or stock piles or from pits or banks by removing the strata or material which overlies or is above or between them or otherwise exposing and retrieving them from the surface, including, but not limited to, strip and auger mining, dredging, quarrying and leaching and surface activity connected with surface or underground coal mining, including, but not limited to, exploration, site preparation, entry, tunnel, slope, drift, shaft and borehole drilling and construction and activities related thereto, coal refuse disposal, coal processing and preparation facilities and activities involved in or related to underground coal mining which are conducted on the surface of the land, produce changes in the land surface, or disturbs the surface, air or water resources of the area.
§ 86.102. Areas where mining is prohibited or limited.
Subject to valid existing rights as defined in § 86.1 (relating to definitions), surface mining operations except those which existed on August 3, 1977, are not permitted:
(1) On lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic River Act (16 U.S.C.A. § 1276(a)) and National Recreation Areas designated by act of Congress.
(2) On Federal lands within the boundaries of a National forest. Surface mining operations may be permitted on the lands, if the Secretary of the United States Department of Interior and the Secretary find that there are no significant recreational, timber, economic or other values incompatible with surface mining operations and the surface mining operations and impacts are incident to an underground coal mine.
(3) Which will adversely affect a publicly-owned park or a place included on or eligible for inclusion on the National Register of Historic Places, unless approved jointly by the Department and the Federal, State or local governmental agency with jurisdiction over the park or places.
(4) On lands within the State park system. Surface mining operations may be permitted if the Department finds that significant land and water conservation benefits will result when remining of previously mined land is proposed.
(5) On lands within State forest picnic areas, State forest natural areas and State forest wild areas. Surface mining operations may be permitted on State forest lands other than picnic areas, natural areas and wild areas, if the Department finds that one or more of the following apply:
(i) There will be no significant adverse impact to natural resources, including timber, water, wildlife, recreational and aesthetic values.
(ii) Significant land and water conservation benefits will result when remining of previously mined lands is proposed.
(6) On lands within the game land system of this Commonwealth. Surface mining operations may be permitted by the Department if the Game Commission consents and finds that one or more of the following apply:
(i) There will be no significant long-term adverse impacts to aquatic or terrestrial wildlife populations and their habitats.
(ii) Significant wildlife habitat and land and water conservation benefits will result when remining of previously mined lands is proposed.
(7) On lands within the authorized boundaries of Pennsylvania Scenic River Systems which have been legislatively designated as such under the Pennsylvania Scenic Rivers Act (32 P. S. §§ 820.21--820.29). Surface mining operations may be permitted if the Department finds that significant land and water conservation benefits will result when remining of previously mined lands is proposed, or when the Department finds that the surface mining operation is consistent with the Scenic Rivers System designation and will not adversely affect the values which the designation is designed to protect.
(8) Within 100 feet measured horizontally of the outside right-of-way line of a public road, except:
(i) For mine access roads or haulage at the point where they join the right-of-way lines.
(ii) When the Department, with concurrence of the agency with jurisdiction over the road, allows the public road to be relocated or the area affected to be within 100 feet of the road, after the following:
(A) Public notice and opportunity for a public hearing in accordance with § 86.103(c) (relating to procedures).
(B) Making a written finding that the interests of the affected public and landowners will be protected.
(9) Within 300 feet measured horizontally from an occupied dwelling, unless the only part of the surface mining operations which is within 300 feet of the dwelling is a haul road or access road which connects with an existing public road on the side of the public road opposite the dwelling or unless the current owner thereof has provided a written waiver consenting to surface mining operations closer than 300 feet. The waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the current owner.
(10) Within 300 feet measured horizontally of a public building, school, church, community or institutional building or public park.
(11) Within 100 feet measured horizontally of a cemetery.
(12) Within 100 feet measured horizontally of the bank of a perennial or intermittent stream. The Department may grant a variance from this distance requirement if the operator demonstrates beyond a reasonable doubt that there will be no adverse hydrologic impacts, water quality impacts or other environmental resources impacts as a result of the variance. The variance will be issued as a written order specifying the methods and techniques that shall be employed to prevent adverse impacts. Prior to granting a variance, the operator is required to give public notice of application thereof in two newspapers of general circulation in the area once a week for 2 successive weeks. If a person files an exception to the proposed variance within 20 days of the last publication thereof, the Department will conduct a public hearing with respect thereto. The Department will also consider information or comments submitted by the Fish and Boat Commission prior to taking action on a variance request.
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