RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 86]
Bonding, Civil Penalties and Areas Unsuitable for Mining
[27 Pa.B. 6186] The Environmental Quality Board (Board) by this order amends Chapter 86 (relating to surface and underground coal mining: general). The amendments are the result of a comprehensive regulatory review required under Governor Ridge's Executive Order 1996-1 and the Department of Environmental Protection's (Department) Regulatory Basics Initiative (RBI). The amendments revise regulations consistent with the rulemaking principles set forth in Executive Order 1996-1 and the RBI. These amendments affect the process for designating areas unsuitable for mining, bonding and civil penalties.
This order was adopted by the Board at its meeting of September 16, 1997.
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, P. O. Box 8461, Room 209 Executive House, Harrisburg, PA 17105-8461, (717) 787-5103, or Joseph Pizarchik, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, 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). This proposal is available electronically through the Department's web site (http://www.dep.state.pa.us).
C. Statutory Authority
These amendments are adopted under the rulemaking authority of the following acts: sections 4(d) and 4.2(a) of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. §§ 1396.4(d) and 1396.4b(a)); sections 5(b) and 315(b) of The Clean Streams Law (35 P. S. §§ 691.5(b) and 691.315(b)); sections 3.2(a) and 6(a) of the Coal Refuse Disposal Control Act (52 P. S. §§ 30.53b(a) and 30.56(a)); section 7(b) of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § 1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20) which authorize the Board to adopt regulations necessary for the Department to perform its work.
D. Background and Summary
In August of 1995, the Department began its RBI review of existing regulations. The RBI review includes an identification of regulations which are more stringent than Federal law and regulation. Under Executive Order 1996-1 and the RBI, regulations which are more stringent than Federal requirements are being revised, unless the Department determined that more stringent State requirements are justified by a compelling and articulable Pennsylvania interest or required by state statute. As part of its regulatory review, the Department solicited public input through a notice in the Pennsylvania Bulletin and the Department's web site. These amendments are the result of suggestions from the public and the Department's own review of its regulations.
The amendments revise the definitions of ''related party'' and ''owned or controlled and owns or controls,'' and create a definition for ''willful violation.'' The procedures for petitioning an area to be designated unsuitable for mining are revised to allow the Department discretion on whether to process a petition received after the first public notice of a permit application on the same area. This change narrows the time period in which submission of a petition will block issuance of a permit involving the same area.
Changes in the sections on bonding include notice to the operator and surety of a proposed bond adjustment, the use of self-bonds in combination with other types of bonds, limiting the reasons that the Department may delay bond release inspections to weather conditions, and notifying the permittee and surety of an intent to forfeit bonds.
The proposed amendment included a new § 86.182(a)(2) which required the Department to advise the permittee and, if applicable, the surety, of the conditions under which forfeiture may be avoided. This language was based on the Federal regulations. Upon closer examination it has been determined that proposed § 86.182(a)(2) is contrary to Pennsylvania mining statutes and it has been deleted.
Section 4(h) of SMCRA (52 P. S. § 1396.4(h)) provides ''If the operator fails or refuses to comply with the requirements of the act in any respect for which liability has been charged on the bond, the Department shall declare such bond forfeited. . . .'' Similar language is found in section 6(b) of the Coal Refuse Disposal Control Act and section 315(b) of The Clean Streams Law. Section 4(h) of SMCRA provides a surety, upon the consent and approval of the Department, the option of reclaiming the forfeited site in lieu of paying the bond amount to the Department. It does not give the surety the option to avoid the forfeiture action. Regulations addressing this point are included in another rulemaking.
Sections of the regulations concerning the calculation of civil penalties are revised by increasing the dollar amount at which a civil penalty becomes mandatory, and by eliminating certain mandatory civil penalties. These amendments also allow the Department to revise civil penalties for exceptional factors. Civil penalties against corporate officers are revised to provide for a stay and withdrawal of individual civil penalties under certain conditions.
In an attempt to reflect the Federal Office of Surface Mining Reclamation and Enforcement (OSM) system for determining the amount of a civil penalty, the proposed amendments reduced the maximum civil penalties assessed for seriousness of the violation and negligence of the operator. Upon closer examination the Department finds that the proposed changes are not consistent with dollar amounts which could be assessed under the OSM system. The OSM uses a point system for determining civil penalties. For each violation, points are accumulated based on history of previous violations, seriousness of the violation and negligence on the part of the operator. Negative points may be added for exceptional speed of compliance. The dollar amount of the civil penalty under the OSM system is $20 per point up to, and including, 25 cumulative points. Above 25 points, each additional point is assessed at $100. The proposed amendments to the Commonwealth's regulations were based solely on $20 per point. Since these amendments set the maximum amount which may be assessed for seriousness and negligence, those dollar amounts are revised to be equivalent to $100 per point, the maximum amount possible under the OSM system. Even these newly revised maximums for seriousness and negligence are below the amounts currently set by § 86.194 (relating to system for assessment of penalties).
The Department also found and has corrected a $10 error in the minimum amount which may be assessed for willful violations.
Amendments to the regulations which establish procedures for assessing civil penalties allow operators to submit additional information concerning a violation, and restrict the use of certain evidence in formal appeals. Another change revises the title of one section of the regulations to clearly identify that section as relating to a final action of the Department.
The regulations being revised in this rulemaking deal with administrative and procedural matters. Impacts will be limited to coal mining operators and any person who may submit a petition to have an area designated as unsuitable for mining.
These amendments were discussed with the Mining and Reclamation Advisory Board (MRAB). The MRAB recommended approval of these amendments at its meeting on July 10, 1997.
E. Summary of Comments and Responses on the Proposed Rulemaking
The proposed rulemaking was published in the Pennsylvania Bulletin on February 8, 1997. The public comment period expired on March 10, 1997. There were no public hearings. The only comments received were from the Independent Regulatory Review Commission (IRRC). However, the Harrisburg Field Office of the OSM provided comments after the close of the public comment period.
The OSM comments were informal in nature and simply stated that the proposed regulations appeared to be consistent with, and no less effective than, the corresponding Federal rules. As mentioned in Section D of this Preamble, a detailed evaluation of the civil penalty provisions in proposed § 86.194 disclosed that the proposed changes were less effective than the OSM civil penalty system. Those provisions have been corrected.
IRRC had two comments relating to procedures. They noted that proposed § 86.124(a)(6) (relating to procedures: initial processing, recordkeeping and notification requirements), which deals with the determination not to process a petition, paralleled the Federal regulation at 30 CFR 764.15(a)(6) with one exception. The proposal did not require the Department to tell the petitioner why the Department would not consider the petition.
Although the Department routinely notifies petitioners and intervenors of its activities concerning the petition, the Board agrees that the Department should tell the petitioner why the Department will not consider the petition. Language has been incorporated in § 86.124(a)(6) which requires the Department to notify the petitioner of its findings.
IRRC also suggested that language be added to § 86.124(a)(6) which outlines the criteria that the Department will use to determine if a petition will be considered. The criteria for designation of lands as unsuitable for mining are found in § 86.122 (relating to criteria for designating lands as unsuitable). The Department had previously considered amending the discretionary criteria contained in § 86.122(b) to define more clearly how the Department would use its discretion in determining the merits of a petition. However, an informal review by OSM Reclamation and Enforcement indicated that doing so would result in criteria which would be more restrictive than Federal regulations. Accordingly, no change to the discretionary criteria in § 86.122(b) is proposed.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires an analysis of the costs and benefits of the final rulemaking.
Benefits These amendments are intended to improve the Commonwealth's coal mining regulations under the principles set forth in Executive Order 1996-1 and the Department's RBI when there is no compelling State interest to be more stringent than the Federal counterpart. This Commonwealth's coal mining industry will benefit from these amendments by receiving prior notice of Department actions on bond adjustments and bond forfeiture and from having an opportunity to provide additional information concerning circumstances related to civil penalty assessments.
Compliance Costs The proposed changes are primarily procedural and administrative in nature. They will impose no additional compliance costs on the regulated community.
Compliance Assistance Plan Since coal mining regulations are an established program in this Commonwealth, compliance assistance will be limited to a simple effort to inform the industry of the specific changes in the program. This will be accomplished by mailing fact sheets directly to coal mine operators.
The Department also conducts informal public information workshops for organizations and persons who may be interested in petitioning to have an area declared unsuitable for mining. The workshops are available upon request and will be modified to describe the change to the petition process made by these amendments.
Paperwork Requirements These amendments impose no additional paperwork on the regulated community. It will be necessary for the Department to revise several existing forms and technical guidance documents.
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)), on January 29, 1997, the Board submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments as well as other documentation.
In preparing these final-form regulations, the Board has considered the comments received from IRRC and the public. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committee on October 14, 1997. IRRC met on October 23, 1997, and approved the final-form regulations 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. 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 all comments were considered.
(3) These amendments do not enlarge the purpose of the proposal published at 27 Pa.B. 730 (February 8, 1997).
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
K. 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 §§ 86.1, 86.152, 86.156, 86.160, 86.171, 86.193, 86.195, 86.201 and 86.202 to read as set forth at 27 Pa.B. 730 and by amending §§ 86.124, 86.182 and 86.194 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, 27 Pa.B. 730 and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Chairperson shall submit this order, 27 Pa.B. 730 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, 27 Pa.B. 730 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately upon publication.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 5840 (November 8, 1997).)
Fiscal Note: 7-302. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
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 § 86.124. Procedures: initial processing, record- keeping and notification requirements.
(a) Within 30 days of receipt of a petition, the Department will notify the petitioner by certified mail whether or not the petition is complete as required by § 86.123 (relating to procedures: petitions). If the 30-day requirement of this subsection cannot be met due to the staff limitations of the Department, the Department may process the petition in accordance with the priority system authorized by subsection (b)(2). Within the 30-day period, the Department will also notify an applicant with pending surface mining permit applications in the area covered by the petition.
* * * * * (6) The Department may determine not to process any petition for a designation under § 86.122 (relating to criteria for designating lands as unsuitable) insofar as it pertains to an area for which an administratively complete surface mining operation permit application has been filed and the first newspaper notice has been published. The Department will provide written notice to the petitioner with a statement of its findings. Once a petition has been returned to the petitioner under this section, the Department may proceed to issue a decision on a permit application received for mining in the area included within the petition.
* * * * *
BOND FORFEITURE § 86.182. Procedures.
(a) The Department will send written notification by mail to the permittee, and the surety on the bond of the Department's intent to forfeit the bond and the reasons for the forfeiture.
(b) If forfeiture of the bond is required, the Department will:
(1) Send written notification by mail to the permittee, and the surety on the bond of the Department's determination to forfeit the bond and the reasons for the forfeiture.
(2) Advise the permittee and surety of their right to appeal to the EHB under section 4 of the Environmental Hearing Board Act of 1988 (35 P. S. § 7514).
(3) Notify the surety of the requirement to pay the amount of the forfeited bond over to the Department within 30 days after notice by certified mail from the Department. The money shall be held in escrow with any interest accruing to the Department pending the resolution of any appeals. If it is determined, by a court of competent jurisdiction, after exhaustion of appeals, that the Commonwealth was not entitled to all or a portion of the amount forfeited, the interest shall accrue proportionately to the surety in the amount determined to be improperly forfeited by the Department.
(4) Proceed to collect on the bond as provided by applicable laws for the collection of defaulted bonds or other debts, consistent with this section, if timely appeal is not filed or if an appeal is filed and the appeal is unsuccessful.
(c) The written determination to forfeit the bond, including the reasons for forfeiture, will be a final decision by the Department.
(d) The Department will forfeit bonds deposited for a permit area, including designated phases of a permit area and amended permit areas, except for that portion of the bond which has been released as provided in §§ 86.170--86.172 (relating to scope; procedures for seeking release of bond; and criteria for release of bond). Liability on every bond posted for a permit area, designated phase of a permit area, or an amendment thereof, shall cover violations within the permit area or resulting from mining of the permit area.
(e) In lieu of paying the amount of the forfeited bond within 30 days after notice, a surety may reclaim the forfeited site upon the consent and approval of the Department. The surety shall notify the Department of its intent to reclaim the site within 30 days after the notice of forfeiture. The notification shall include a time frame within which the surety will submit a proposal which describes both the reclamation work to be done and a schedule for completion of the reclamation. Subject to the Department's approval of the time frame and the subsequent reclamation proposal, the Department and the surety will enter into a consent order and agreement specifying the terms of the reclamation work to be done.
(f) If the Department declares a collateral bond forfeited, it will pay, or direct the State Treasurer to pay, the collateral funds into the Surface Mining Conservation and Reclamation Fund. If upon proper demand and presentation, the banking institution or other person or municipality which issued the collateral refuses to pay the Department the proceeds of a collateral undertaking, such as a certificate of deposit, letter of credit or government negotiable security, the Department will take appropriate steps to collect the proceeds.
(g) The Department will use funds collected from bond forfeiture to complete the reclamation plan, or remaining portion thereof, on the permit area or increment to which bond coverage applies.
(h) If the amount forfeited is:
(1) Insufficient to pay for the full cost of reclamation, the operator shall be liable for remaining costs. The Department may complete, or authorize completion of, the reclamation of the bonded area and may recover from the operator all costs of reclamation in excess of the amount forfeited.
(2) More than the amount necessary to complete the reclamation, the excess funds will be used by the Department, as approved by the Secretary, for any of the purposes provided in section 18(a) of the act (52 P. S. § 1397.18(a)).
§ 86.194. System for assessment of penalties.
(a) The Department and, in event of appeal, the EHB, will use the system described in this section to determine the amount of the penalty and whether a mandatory penalty will be assessed as provided in § 86.193 (relating to assessment of penalty). Unless otherwise indicated in this section, the penalty may be set at any amount from zero through the maximum amount specified in this section.
(b) Civil penalties will be assessed as follows:
(1) Seriousness. Up to $3,000 will be assessed based on the seriousness of the violation, including:
* * * * * (vi) An additional amount up to the statutory maximum may be assessed in extraordinary circumstances.
(2) Culpability. If the violation was caused, contributed to or allowed to continue due to negligence on the part of persons working on the exploration or surface mining site, a penalty of up to $1,200 will be assessed depending on the degree of negligence of the persons. If the violation was willful or the result of reckless conduct on the part of the person working on the exploration or surface mining site, a penalty of up to the statutory maximum but at least $260, will be assessed.
(3) Speed of compliance. A credit will be given of up to $1,000 based on the person's attempt to achieve rapid compliance after the person knew or should have known of the violation. If the violation is abated within the time period in an abatement order, a credit will not be given under this paragraph unless the violation is abated in the shortest possible time, in which case a credit of up to $1,000 will be given. The credit will be available to offset only civil penalties assessed for the specific violation at issue.
(4) Cost to the Commonwealth. A penalty of up to the statutory maximum may be assessed based on the costs expended by the Commonwealth as a result of the violation. The costs may include:
(i) Administrative costs.
* * * * * (6) History of previous violations. In determining a penalty for a violation, the Department will consider previous violations of the applicable laws for which the same person or municipality has been found to have been responsible in a prior adjudicated proceeding, agreement, consent order or decree which become final within the previous 1-year period on the permit where the violation has occurred. The penalty otherwise assessable for each violation shall be increased by a factor of 5% for each previous violation. The total increase in assessment based on history of previous violation will not exceed $1,000.
* * * * * (f) Revision of civil penalty.
(1) The Department, upon its own initiative or upon written request received within 15 days of issuance of an order or cessation order, may revise a civil penalty calculated in accordance with the dollar limits in subsection (b), if the Department determines that, taking into account exceptional factors present in the particular case, the civil penalty is demonstrably unjust, the Department will not reduce the civil penalty on the basis of an argument that a reduction in civil penalty could be used to abate violations of the acts. This chapter, Chapter 87, 88, 89 or 90, or a condition of a permit or exploration approval. The basis for every revision of a civil penalty shall be fully explained and documented in the records of the case.
(2) If the Department revises the civil penalty, the Department will use the general criteria in subsection (b) to determine the appropriate civil penalty. When the Department has elected to revise a civil penalty, the Department will give a written explanation of the basis for the revised civil penalty to the person to whom the order was issued.
[Pa.B. Doc. No. 97-1895. Filed for public inspection November 28, 1997, 9:00 a.m.]
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