RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 86--90]
Coal Mine Permitting and Performance Standards
[28 Pa.B. 2227] The Environmental Quality Board (Board) by this order adopts amendments to Chapters 86--90. The amendments address coal mine permitting requirements and various performance standards relating to coal mining.
This order was adopted by the Board at its meeting of January 20, 1998.
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., Bureau of Mining and Reclamation, P. O. Box 8461, Rachel Carson State Office Building, 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 final-form rulemaking is 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 rulemaking authority of section 4.2(a) of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. § 1396.4b(a)); section 5(b) of The Clean Streams Law (CSL) (35 P. S. § 691.5(b)); section 3.2(a) of the Coal Refuse Disposal Control Act (CRDCA) (52 P. S. § 30.53b(a)); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20) which authorizes the Board to adopt regulations necessary for the Department to perform its work.
D. Background and Summary
This final-form rulemaking amends existing provisions relating to permitting and performance standards for surface coal mining, underground coal mining and coal refuse disposal operations. The permitting provisions being amended include modifying the criteria for permit approval; expanding upon circumstances when permit terms may be extended; expanding right of entry requirements to address circumstances where the mineral estate has been severed from the surface estate; revising a permit applicant's proof of publication requirement and adding an additional land use category. Performance standards being amended relate to coal exploration, casing and sealing drill holes, oil and gas well operator approval of mining activities within 125 feet (38.1 meters) of an oil or gas well, topsoil removal, general hydrology and effluent limits, use of explosives, grading, postmining land use, haul roads and access roads and auger mining. The amendments also modify the regulatory scope of Chapters 86--90 and amend provisions relating to bond release after revegetation and bond release for remining areas with preexisting pollutional discharges.
This final-form rulemaking is the result of the Department's Regulatory Basics Initiative (RBI) which was initiated in August 1995 and Governor Ridge's Executive Order 1996-1, titled ''Regulatory Review and Promulgation,'' dated February 6, 1996. Under the RBI, the Department solicited public input concerning existing regulations in the August 19, 1995, Pennsylvania Bulletin. Comments received by the Department and the Department's own review of the regulations under the RBI and Executive Order 1996-1 have identified the sections in this rulemaking which are more stringent than corresponding Federal requirements without a compelling and articulable State interest, imposing disproportionate economic costs, being too prescriptive or technology specific or lacking clarity. Additionally, the Department has inserted, when appropriate, measures in equivalent standard international units.
These regulatory changes were reviewed and discussed with the Mining and Reclamation Advisory Board (MRAB) which is the Department's advisory body for regulations pertaining to the surface mining of coal. A draft of the final-form rulemaking was reviewed and discussed with the MRAB's Regulation, Legislation and Technical Committee on October 23, 1997, and with the full MRAB on October 24, 1997. The MRAB concurred with the final rulemaking at a special meeting of the MRAB on November 7, 1997.
The following summary identifies the section of the regulations being amended along with a description of the specific change. Since most of the changes are being made so as to be no more stringent than Federal requirements, the corresponding Federal regulation for each section is also listed.
§ 86.2. Scope.
30 CFR 700.11Subsection (a) is modified to correct grammatical errors. Subsection (b) was proposed to reflect exemptions from the definition of surface mining activities in the SMCRA. The Office of Surface Mining Reclamation and Enforcement (OSM) indicated subsection (b) is based upon SMCRA provisions which have not been approved by OSM and raised various issues with the SMCRA provisions. Consequently, subsection (b) is deleted.
§ 86.37(a)(4). Criteria for permit
approval or denial/hydrologic
balance.
30 CFR 773.15(c)(5)
The criterion relating to the probable cumulative impacts of mining on the hydrologic balance is revised to require that the mining be designed to prevent ''material'' damage to the hydrologic balance ''outside'' the proposed permit area. The current regulation does not include the term ''material'' and includes the term ''within'' the proposed permit area. This change is made to conform with the language of the corresponding Federal regulation and is not intended to lessen the requirements under the CSL and SMCRA for prevention of pollution to streams and other waters of this Commonwealth.
§ 86.31. Public notices of filing of
permit applications.
30 CFR 713.13(a)
This section is amended by adding subsection (e) to provide for mine operator notification to oil and gas well owners when surface mining activities are proposed within 125 feet (38.1 meters) of their oil or gas well. This provision is added on final rulemaking in response to comments on the proposed changes to §§ 87.93, 88.83, 88.283 and 90.93. The changes to §§ 87.93, 88.83, 88.283 and 90.93 are discussed within this section and Section E of this Preamble.
§ 86.32. Opportunity for submission
of written comments or objections
on the permit application.
30 CFR 773.13(b)
Subsection (a) is amended to provide the opportunity for oil and gas well owners (who receive notification under § 86.31(e)) to submit to the Department a description of measures the well owner believes are necessary to minimize damage, destruction or disruption of services provided by the oil or gas well which may be caused by the proposed surface mining activities. Subsection (a) is amended on final rulemaking in response to comments on the proposed changes to §§ 87.93, 88.83, 88.283 and 90.93. The changes to §§ 87.93, 88.83, 88.283 and 90.93 are discussed within this section and Section E of this Preamble.
§ 86.34. Informal conferences.
30 CFR 773.13(c)Subsection (a) is amended to provide for oil and gas well owners (who receive notification under § 86.31(e)) to request informal conferences on permit applications. Subsection (a) is amended on final rulemaking in response to comments on the proposed changes to §§ 87.93, 88.83, 88.283 and 90.93. The changes to §§ 87.93, 88.83, 88.283 and 90.93 are discussed within this section and Section E of this Preamble.
§ 86.37(a)(6). Criteria for permit
approval or denial/historic resources.
30 CFR 761.11(c)
and 773.15(c)The criterion that permit applicants demonstrate that mining activities will not adversely affect historic resources is modified to apply only to historic places actually listed on the National Register of Historic Places. The Department must still take into account the effect of the proposed mining activities on properties listed on or eligible for listing on the National Register of Historic Places. In addition, the Department's consideration must be documented in writing and may be supported by appropriate permit conditions or operational plan changes to protect historic resources or a documented decision that no additional protective measures are necessary. This amendment conforms with the corresponding Federal regulations.
§ 86.40(b). Permit term.
30 CFR 773.19(e)(2)(ii)This subsection requires operators to begin mining activities within 3 years of issuance of a permit unless the operator shows that additional time is needed because of litigation. This amendment expands the reasons for extending the start of mining activities to include conditions which are beyond the control of the operator. This change matches similar provisions in the corresponding Federal regulation.
§ 86.64. Right of entry.
30 CFR 778.15The requirement for permit applicants to demonstrate right of entry to conduct coal mining activities is amended to address circumstances where the mineral estate has been severed from the surface estate. Also, language is added to clarify the requirements for describing the documents which provide the applicant's legal right to enter and conduct coal mining activities. The corresponding Federal regulation contains the same requirements. The amendment also clearly states that the Federal requirements for right of entry are in addition to those State law requirements arising under section 4 of SMCRA (52 P. S. § 1396.4).
§ 86.70. Proof of publication.
30 CFR 778.21These amendments allow a permit applicant to demonstrate its intent to publish a notice in a local newspaper instead of submitting a statement from the newspaper. Additionally, the applicant may submit a copy of each weekly newspaper advertisement (that is, 4 copies) as an alternative to submitting a notarized proof of publication. These changes conform to the corresponding Federal regulation.
§ 86.132. Definitions (relating
to coal exploration).
30 CFR 701.5
The definition of ''substantially disturb,'' in the context of coal exploration, is modified to apply to significant impacts upon land, air or water resources. The current language refers to any impacts. The amended language is consistent with the Federal definition of ''substantially disturb.''
§ 86.133. General requirements.
30 CFR 772.11(a)
and 772.12(a)The limit for coal removal during coal exploration is changed from less than 250 tons (226 metric tons) of coal to 250 tons (226 metric tons) or less as found in Federal regulations.
§ 86.134. Coal exploration
performance and design
standards.
30 CFR 815.15
Requirements for measuring environmental characteristics during coal exploration, specifying who has responsibility for revegetating lands disturbed during exploration activities and placing limitations on vehicular travel on land where coal exploration occurs are deleted. These deletions eliminate overly prescriptive requirements.
§ 86.174(b). Standards for
release of bonds.
30 CFR 800.40(c)(2)
This subsection is revised to clarify the standards for Stage 2 reclamation bond release. The current wording of this section has the potential for being misinterpreted relative to application of the standards for successful revegetation associated with Stage 2 bond release. This amendment applies a more general standard to be consistent with section 4(b)(2) of SMCRA and the corresponding Federal regulations.
§§ 87.1, 88.1 and 90.1. Definitions.
30 CFR 701.5A category of ''unmanaged natural habitat'' is added to the list of recognized land uses included in the definition of ''land use.'' This category is equivalent to the Federal land use definition for ''undeveloped land or no current use or land management.'' This change provides a land use category which allows permit applicants to more realistically identify lands which remain in a basically unmanaged natural state. The change will provide more flexibility in approving land use changes.
§§ 87.62, 88.42 and 90.31.
Operational information.
30 CFR 780.11
New paragraphs (that is, paragraph (4) for § 87.62 and paragraph (5) for §§ 88.42 and 90.31) are added which requires that the operation plan of a mining application demonstrate the notification requirements of § 86.31(e) have been satisfied. These paragraphs are added on final rulemaking in response to comments on the proposed changes to §§ 87.93, 88.83, 88.283 and 90.93. The changes to §§ 87.93, 88.83, 88.283 and 90.93 are discussed within this section and Section E of this Preamble.
§§ 87.77(a), 88.56(a), 88.492(f)(1),
89.38(b) and 90.40(a) Protection
of parks and historic places.
30 CFR 780.31(a)
and 784.17(a)
The requirement for a permit application to contain a description of measures for preventing or minimizing adverse impacts to public parks or historic places is changed to apply only to publicly owned parks. There are no changes made to the protections afforded historic places actually listed on the National Register of Historic Places. However, consistent with Federal regulations, the Department retains the authority to require the applicant to protect places eligible for listing on the National Register of Historic Places. These amendments are made so as to be no more restrictive than the corresponding Federal regulations.
§§ 87.93, 88.83, 88.283 and 90.93.
Casing and sealing of drill holes.
30 CFR 816.13
and 817.13The wording within §§ 87.93(a)(2) and 88.83(a)(2) for protection of the hydrologic balance is changed from ''prevent to the maximum extent possible'' to ''minimize'' disturbance to the prevailing hydrologic balance. These changes are not intended to lessen the requirements under the CSL and SMCRA for prevention of pollution to streams and other waters of this Commonwealth. The changes are made solely for purposes of having these sections conform with the current language in §§ 88.283 and 90.93 and the language of the corresponding Federal regulations.
The requirement in §§ 87.93(e), 88.83(e), 88.283(e) and 90.93(e) for having oil and gas well operators agree in writing to mining activities closer than 125 feet (38.1 meters) to a well was proposed to be deleted with no replacement language. Replacement language to these sections as well as changes to §§ 86.31, 86.32, 86.34, 87.62, 88.42 and 90.31 have been added at final rulemaking and are discussed in Section E of this Preamble. The corresponding Federal regulations do not contain this requirement. Further, the reference in § 90.93(d) to the act regulating oil and gas well operations is being corrected.
§§ 87.97 and 90.97. Topsoil removal.
30 CFR 816.22
and 817.22The provisions which allow for supplementing or substituting other materials for subsoil are changed to apply to topsoil in keeping with the corresponding Federal regulations.
§§ 87.101(a), 88.91(a), 88.291(a) and
90.101(a). Hydrologic balance/
general requirements.
30 CFR 816.41(a)
and 817.41(a)
The wording that calls for mining activities to be planned and conducted to protect the hydrologic balance is being amended. The phrase ''prevent to the maximum extent possible'' has been replaced with ''minimize'' as it concerns disturbances to the prevailing hydrologic balance within the permit area and adjacent area. Also, requirements are added for preventing material damage to the hydrologic balance outside the permit area and for the Department requiring measures to assure that the material damage is prevented. These amendments are made solely to conform with the language of the corresponding Federal regulations and are not intended to lessen the requirements under the CSL and SMCRA for prevention of pollution to streams and other waters of this Commonwealth.
§§ 87.102(a), 88.92(a), 88.187(a),
88.292(a), 89.52(c) and 90.102(a).
Hydrologic balance/effluent
standards.
30 CFR 816.42
and 817.42
and 40 CFR Part 434
The effluent limit for manganese is deleted for surface water runoff from storm events of less than or equal to a 10-year, 24-hour storm to be consistent with the corresponding Federal regulations.
§§ 87.106, 88.96, 88.191, 88.296
and 90.106. Hydrologic balance/
sediment control measures.
30 CFR 816.45
and 817.45
The wording which provides for the design, construction and maintenance of sediment control measures is changed from ''prevent erosion to the maximum extent possible'' to ''minimize erosion to the extent possible,'' and from ''prevent to the maximum extent possible'' to ''prevent to the extent possible'' contributions of sediment to stream flow or runoff outside the affected area. These changes are made solely to conform with the language of the corresponding Federal regulations and are not intended to lessen the requirements under the CSL and SMCRA for prevention of pollution to streams and other waters of this Commonwealth.
§ 87.126(a)(1). Use of explosives/
public notice of blasting schedule.
30 CFR 816.64(b)(1)
The requirement for the blasting schedule to be published in a newspaper is changed from not more than 20 days to not more than 30 days before beginning blasting. This amendment is made so as to be no more restrictive than the corresponding Federal regulations.
§ 87.127. Use of explosives/
surface blasting requirements.
30 CFR 816.67(c)
and 817.67(c)The standard for fly rock from blasting is changed from no fly rock beyond the ''line of property owned or leased by the permittee'' to no fly rock beyond the ''permit boundary.'' This change conforms with Federal requirements.
§§ 87.138, 89.65, 89.82 and 90.150.
Protection of fish, wildlife and
related environmental values.
30 CFR 816.9,
816.97 and 817.97
The language concerning protection of fish, wildlife and related environmental values is amended by replacing the word ''prevent'' disturbances and adverse impacts with the term ''minimize to the extent possible'' relative to disturbances and adverse impacts on these protected resources. Additional wording changes provide for roads to be located and operated to ''avoid or minimize'' instead of ''prevent'' impacts on fish and wildlife, and to ''avoid and enhance where practicable or restore'' instead of ''prevent'' disturbances to habitats of unusually high value to fish and wildlife. The new terminology is intended solely to track the language of the corresponding Federal regulations.
§§ 87.144 and 88.118. Backfilling
and grading/final slopes.
30 CFR 816.102
and 817.102Performance standards for construction of terraces and for final grading are deleted. These deletions eliminate unnecessarily prescriptive requirements.
§§ 87.146 and 89.87. Regrading
or stabilizing rills and gullies.
30 CFR 816.95
and 817.95The requirement to fill, grade or otherwise stabilize rills and gullies deeper than 9 inches (23 centimeters) is more prescriptive than Federal requirements. The language of this section is rewritten to require that any rill or gully which is disruptive to the postmining land use or causing or contributing to a violation of water quality standards be filled, regraded or otherwise stabilized.
§§ 87.159, 88.133, 88.221, 88.334,
89.88 and 90.166. Postmining land
use.
30 CFR 816.133.
and 817.133
The requirements to consider premining land management practices and historic use of the land when comparing premining to postmining land use, and to have plans for the postmining land use designed by a registered engineer are more stringent than the Federal regulations and are deleted.
§§ 87.160(a), 88.138(a), 88.231(a),
88.335(a), 89.90(a) and 90.134(a).
Haul roads and access roads.
30 CFR 816.150(b)
and 817.150(b)
The phrase ''prevent to the maximum extent possible'' erosion and other pollution or damage is replaced with the Federal language to ''control or prevent'' erosion or other pollution or damage. These amendments are not intended to lessen the requirements under the CSL and SMCRA for prevention of pollution to streams and other waters of this Commonwealth.
§§ 87.166, 88.144, 88.237, 88.341
and 90.140. Haul road and access
road/restoration.
30 CFR 816.150(c)--(f)
and 817.150(c)--(f)
The time period for meeting various haul road and access road restoration standards is changed from ''immediately'' to ''as soon as practicable'' after the road is no longer needed for the mining activities. Also, the standard for restoration is being changed from ''ripping, plowing and scarifying'' the roadbed to ''ripping or scarifying'' the roadbed. These changes are being made so that the language of this section would be no more stringent than the corresponding Federal regulations.
§§ 87.173(a), 89.67(a) and 90.147(a).
Support facilities and utility
installations.
30 CFR 816.181
and 817.181
These amendments delete the phrase ''designed, constructed, maintained and used to prevent to the extent possible'' which pertains to damage to fish, wildlife and related environmental values. The wording requires support facilities to be ''located, maintained and used to minimize damage'' to these resources. The language is equivalent to the terminology in the corresponding Federal regulations.
§ 87.174. Steep slope operations.
30 CFR 816.107
and 817.107The requirement prohibiting unlined or unprotected drainage channels on backfilled areas with steep slopes unless approved by the Department is deleted. This requirement is unnecessarily prescriptive and is not found in the Federal regulations dealing with steep slope operations.
§ 87.176. Auger mining.
30 CFR 819.15Existing subsection (d), which prohibits auger mining to the rise of the coal unless the mine operator demonstrates the augering will not pose a threat of water pollution, is deleted since it is redundant with the provisions of subsection (e). The amendment eliminates a technology specific requirement and imposes the obligation to make certain demonstrations with respect to adverse water quality impacts, fill stability, resource recovery and subsidence on persons conducting surface mining activities.
§§ 87.209 and 88.509. Criteria and schedule for bond release on pollution abatement areas. No equivalent Federal regulation
These sections relate to bond release on areas with preexisting pollutional discharges when remining was authorized under Chapter 87, Subchapter F and Chapter 88, Subchapter G. The maximum bond amount which may be released for completing backfilling, regrading and drainage control on pollution abatement areas is changed from 50% to 60%. Also, the maximum of 35% of the bond amount which may be released for completing revegetation is replaced with a requirement that the Department retain an amount of bond sufficient to reestablish vegetation. The modified bond release amounts are equivalent to the standard Stage 1 and Stage 2 bond releases. Other modifications deal with the time period for demonstrating that the required standards for pollution loads have been achieved. In addition, the requirement relating to the 5-year period of liability on the bond is clarified. These amendments are made to reduce requirements which impose disproportionate economic costs, to provide clarification and to conform with the 1996 amendments (Act 43) to SMCRA.
E. Summary of Comments and Responses on the Proposed Rulemaking
Notice of proposed rulemaking was published at 27 Pa.B. 2255 (May 3, 1997). The proposal set forth a 60-day public comment period. Public hearings on the proposed rulemaking were held by the Board on June 10, 1997, in Greensburg, PA and on June 12, 1997, in Pottsville, PA. The public comment period expired on July 2, 1997.
This section contains a summary of comments received by the Board during the public comment period. It also addresses comments from the Independent Regulatory Review Commission (IRRC). Comments were received from five commentators in addition to IRRC. The Department has completed a review of the comments and has prepared a comment and response document that addresses each comment on the proposed amendments. The Department's Comment and Response Document is available from the Bureau of Mining and Reclamation at the address shown in Section B of this Preamble.
The Department submitted the proposed rulemaking to the OSM on May 13, 1997, for their informal review as an amendment to the Commonwealth's Federally-approved mining regulatory program. The OSM's comments were received subsequent to the close of the public comment period, but were considered by the Board and are discussed in this section of the Preamble.
A summary of the comments and responses on the proposed rulemaking is presented as follows.
§ 86.2. Scope.
Proposed § 86.2(b) has been withdrawn. The OSM indicated that the proposed § 86.2(b) was based on statutory provisions which had not been approved by the OSM. The OSM also indicated that approval of the statutory provisions was a prerequisite to approval of § 86.2(b) and raised various issues with the statutory provisions. Consequently, proposed § 86.2(b) has been withdrawn from this final-form rulemaking.
§ 86.37. Criteria for permit approval or denial.
A commentator objected to the change to § 86.37(a)(4) to add the word ''material'' before the term ''damage to the hydrologic balance.'' The commentator noted that under the existing regulations permit applicants must affirmatively demonstrate that their mining activities were designed to prevent any damage to the hydrologic balance, whereas, under this change to the regulations, permit applicants shall demonstrate that their activities are designed to prevent material damage to the hydrologic balance. The commentator stated there is no definition of the modifier ''material,'' but the obvious purpose is to make the permit applicant's burden lighter, and therefore to allow some damage to the hydrologic balance. Two commentators objected to deleting the words ''within and'' after the term ''damage to the hydrologic balance.'' One of the two commentators noted this change requires the permit applicant to demonstrate that mining activities are designed to prevent material damage to the hydrologic balance only outside the proposed permit area, which lessens the burden for the operator by restricting the geographic area within which it must demonstrate that its activities will not materially damage the hydrologic balance. The commentator further noted that based upon the definition of ''hydrologic balance'' in the regulations, the focus should be upon hydrologic units, not the permit boundary line.
The changes to § 86.37(a)(4) were made to conform with the corresponding Federal regulations at 30 CFR 773.15(c)(5). A permit applicant must continue to provide a plan in accordance with §§ 87.69, 88.49, 89.36 and 90.35 for ensuring the protection of the quality and quantity of surface and groundwater both within the proposed permit area and the adjacent area. ''Adjacent area'' is defined in the regulations as land outside the permit area where air, surface or groundwater, fish, wildlife, vegetation or other resources may be adversely affected by mining activities. The change to § 86.37(a)(4) does not restrict the geographic area within which a permit applicant must determine hydrologic impacts of mining. In addition, § 86.37(a)(4) continues to require an assessment by the Department of the probable cumulative impacts of all anticipated coal mining in the general area on the hydrologic balance. The ''general area'' is defined in the regulations as the topographic and groundwater basin (with respect to hydrology) surrounding a permit area which is of sufficient size to allow assessment of the probable cumulative impacts of mining on the quality and quantity of surface water and groundwaters. In addition to these regulations, which continue to require protection of the hydrologic balance, § 86.37(a)(3) requires a permit applicant to demonstrate that there is no presumptive evidence of potential pollution to the waters of this Commonwealth.
The MRAB discussed § 86.37(a)(4) and suggested that the word ''material'' needed to be properly defined. The Department provided the MRAB with a copy of its existing technical guidance (DEP Document ID 563-2112-219) titled ''Cumulative Hydrologic Impact Assessments.'' This technical guidance defines ''material damage to the hydrologic balance.'' The Department indicated to the MRAB that since the OSM had not defined material damage in the context used in the federal regulation corresponding to § 86.37(a)(4) (that is, 30 CFR 773.15(c)(5)), the Department's recommended approach was to rely upon the technical guidance for providing definition to the term ''material damage.''
The proposed deletion of the words ''or eligible for inclusion on'' (relating to listing historic resources on the National Register of Historic Places) from § 86.37(a)(6) was objected to by two commentators. They indicated that protection of historic resources is weakened by deleting the requirement that a permit applicant demonstrate that the proposed mining activities will not adversely affect places eligible for inclusion on the National Register of Historic Places. One commentator noted that a site eligible for listing on the National Register of Historic Places may not actually be listed for many months during which time the site could be ruined by mining activities. The commentator noted that only those places actually included on the National Register of Historic Places would be protected.
The changes to § 86.37(a)(6) do not result in protection being afforded to only those places actually included on the National Register of Historic Places. Sections 87.42(2), 88.22(2), 88.491(a)(1)(ii), 89.38(a) and 90.11(a)(3) of existing regulations require applicants for coal mining permits to provide information on historic resources eligible for listing on the National Register of Historic Places. These sections of the regulations also provide the Department with the authority to require the applicants to identify and evaluate important historic resources that may be eligible for listing on the National Register of Historic Places. In addition, Department procedures require permit applicants to notify the Pennsylvania Historical and Museum Commission when proposing mining activities. No change was made to § 86.37(a)(6) based upon these comments. However, based upon discussions at the February 18, 1997, Board meeting, the order of the first and second sentence in § 86.37(a)(6) has been reversed for clarity.
§ 87.77(a), 88.56(a), 88.492(f)(1), 89.38(b) and 90.40(a). Protection of parks and historic places.
Two commentators opposed changing ''public parks'' to ''publicly-owned parks.'' A commentator noted there is no discussion about the effects of the change nor mention of the definition of the terms. The commentator further notes that: the corresponding Federal regulation (that is, 30 CFR 780.31) refers to ''public parks'' in the title of the regulation and to ''publicly-owned parks'' in the body of the regulation; and Pennsylvania regulations already have a definition of ''public parks,'' so the effect of the change will be to remove from protection certain facilities that are now protected.
The Board agrees with the commentator that ''public park'' should not be changed to ''publicly-owned park'' in the heading to §§ 87.77, 88.56 and 88.492(f), since these sections continue to have applicability to ''public parks'' as a result of the references to Chapter 86, Subchapter D. The heading to these sections has been changed to retain the current wording. Chapter 86, Subchapter D continues to afford protection to publicly-owned parks as well as public parks.
§ 87.93, 88.83, 88.283 and 90.93. Casing and sealing of drill holes.
Four commentators provided responses to the changes to §§ 87.93(e), 88.83(e), 88.283(e) and 90.93(e) for deleting the requirement that oil and gas well operators agree in writing to mining activities closer than 125 feet (38.1 meters) to an oil or gas well. The Pennsylvania Oil and Gas Association noted that deletion of the requirement to obtain the written consent of the well operator to allow mining activity within 125 feet (38.1 meters) of an operating or inactive oil or gas well creates serious potential public safety problems and disrupts the foundation for communication and cooperation between private parties who share common interests in real property.
The Pennsylvania Coal Association supported the proposed change and suggested that § 87.93(e)(2) be clarified to mimic Federal intent; that is, if the mine operator provides access to the well at all times and the integrity of the well is maintained, the Department should automatically grant a variance to allow mining at a distance less than 125 feet (38.1 meters) from the oil or gas well.
The Pennsylvania Mining Professionals (PMP) suggested that no regulation is needed for a 125-foot (38.1-meter) barrier to an oil or gas well as long as access to the well and integrity of the well is maintained. The PMP noted that elimination of the requirement for well operator written approval would give the Department total discretion for allowing a lesser distance.
IRRC stated that the Independent Oil and Gas Association of Pennsylvania, in addition to the Pennsylvania Oil and Gas Association, opposed the proposed change while the Pennsylvania Coal Association supported the proposed change. IRRC indicated that with the proposed change, well operators will no longer be able to dictate what must be done to prevent damage to their wells. IRRC acknowledges that § 87.173(b), regarding mining activities minimizing damage, destruction or disruption of services provided by oil and gas wells and pipelines unless otherwise approved by the owner of those facilities, still provides protection. In addition, IRRC indicated that if the requirement for well operator written approval is deleted, subsection (e)(2)(iii) of §§ 87.93, 88.83, 88.283 and 90.93 should be further amended to require a coal operator to provide written notification to the operator of an existing operating well when proposing mining activities within 125 feet (38.1 meters) of the well. In addition, the notice should be provided to the well operator no later than contemporaneously with the coal operator's variance request to the Department.
IRRC identified several portions of the Department's coal mine permit application which address protection of oil and gas wells during mining and suggested these provisions be added to §§ 87.173(b), 89.73(b) and 90.147(b). These provisions of the mining permit application already have a basis in regulations. Chapter 209 (relating to coal mines) contains safety provisions for coal mining and § 209.34 (relating to pipelines and wells) prohibits excavation during coal mining within 100 feet (30.5 meters) of any pipelines or active or inactive oil or gas wells until precautions have been taken to ensure and prevent inadvertent rupturing of the lines or wells. Section 209.60(c) (relating to protection of persons and property) requires a coal operator to notify the owner of a pipeline when intending to blast within 200 feet (61.0 meters) of the pipeline and provide the owner with a description of the precautionary measures which will be taken.
The MRAB held extensive discussions on the issue of mining near oil and gas wells--first at its October 23, 1997, meeting of its Regulation, Legislation and Technical Subcommittee and then at its full Board meeting on October 24. Representatives of the coal industry, the oil and gas industry and a representative of the Oil and Gas Technical Advisory Board attended and provided input at both meetings. These discussions helped clarify the concerns of the oil and gas industry and the coal industry regarding mining activities within 125 feet (38.1 meters) of an oil or gas well. After these MRAB meetings, the Department and representatives of this Commonwealth's oil and gas and coal industries met. The parties negotiated regulatory changes which are acceptable to both industries and the Department. The negotiated language provides for a more balanced comprehensive approach for mining within 125 feet (38.1 meters) of an oil or gas well. The negotiated language establishes notification requirements with more focus placed upon the mine operator identifying what measures would be taken to minimize adverse impacts on an oil or gas well and the services provided by the wells. The agreed upon regulatory provisions are reflected in modifications of §§ 86.31, 86.32, 86.34, 87.62, 87.93, 88.42, 88.83, 88.283, 90.31 and 90.93.
§§ 87.101(a), 88.91(a), 88.291(a) and 90.101(a). Hydrologic balance/general requirements.
One commentator indicated the proposed changes will weaken protection of the hydrologic balance by allowing mine operators to merely ''minimize'' instead of ''prevent to the maximum extent possible'' disturbances to the prevailing hydrologic balance. In addition, the commentator states that the present regulation requiring disturbances to the prevailing hydrologic balance be ''prevented in the permit and adjacent areas'' would be weakened by the proposed requirement to ''prevent material damage to the hydrologic balance outside the permit area.'' The changes to these sections were made to conform with the corresponding Federal regulations in 30 CFR 816.41 and 817.41 regarding protection of the hydrologic balance. However, upon further analysis of these Federal regulations, there are additional Federal requirements for protection of the hydrologic balance which relate to and contribute towards implementation of the regulations proposed for change. These additional Federal requirements have been added to §§ 87.101, 88.91, 88.291 and 90.101 to the extent authorized by the CSL.
§§ 87.102(a), 88.92(a), 88.187(a), 88.292(a), 89.52(c) and 90.102(a). Hydrologic balance/effluent standards.
The Department has proposed the deletion of manganese from the effluent standards for surface water runoff when a precipitation event is greater than a 10-year 24-hour storm event. One commentator has suggested that this change should not be made. The change makes the Commonwealth's effluent standards for manganese consistent with the corresponding Federal requirements of 40 CFR Part 434. Manganese continues to be an effluent standard for discharges of mine pit water and other discharges during dry weather flow conditions. No change has been made in response to this comment.
§§ 87.106, 88.96, 88.191, 88.296 and 90.106. Hydrologic balance/sediment control measures.
One commentator indicated the proposed changes weaken the requirements for protection of the hydrologic balance by weakening the requirements for erosion and sedimentation control measures.
Another commentator suggested maintaining the language ''prevent to the maximum extent possible contributions of sediment to stream flow or to runoff outside the affected area'' in §§ 88.96(1), 88.191(1), 88.296(1) and 90.106(a)(1) and the language ''prevent erosion to the maximum extent possible'' in §§ 87.106(3), 88.96(3), 88.191(3) and 90.106(a)(3).
The changes to these sections were made to conform with the corresponding Federal regulations in 30 CFR 816.45 and 817.45. These sections require sediment control measures to be designed, constructed and maintained using the best technology currently available. The term ''best technology currently available'' is defined in §§ 87.1, 88.1 and 90.1 in part as ''equipment devices, systems, methods or techniques which will prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contributions of suspended solids in excess of requirements set by applicable state or Federal laws.'' The proposed changes along with applying the term ''best technology currently available'' provide protection of the hydrologic balance consistent with State law. In addition, §§ 87.70, 88.96(4) and 90.37 require that sediment control measures comply with the requirements of Chapter 102 (relating to erosion control). No change has been made in response to these comments.
§§ 87.138, 89.65, 89.82 and 90.150. Protection of fish, wildlife and related environmental values.
One commentator indicated that the proposed changes to these sections reduce protection available to fish, wildlife and other environmental values. The commentator noted that the regulations currently in effect require the mine operator to prevent disturbance to the habitat of unusually high value to fish and wildlife while the proposed amendments allow the mine operator to avoid disturbance to the habitats, enhance where practical, or restore the habitats. Another commentator suggested maintaining the language ''Prevent disturbances and adverse impacts on fish, wildlife and related environmental values . . .'' in §§ 87.138(a)(1), 89.65(a), 89.82(a) and 90.150(a)(1); maintaining the language ''Locate and operate haul and access roads to prevent impacts to fish and wildlife . . .'' in §§ 87.138(a)(2), 89.65(d)(1) and 90.150(a)(2); and maintaining the language ''Prevent disturbance to . . .'' in §§ 87.138(a)(3), 89.65(d)(2) and 90.150(a)(3). The Game Commission expressed objections to IRRC on the proposed deletion of the wording ''prevent to the maximum extent possible'' and replacing the wording with ''minimize to the extent possible'' under §§ 87.138, 89.65, 89.82 and 90.150.
These sections were proposed for change to track the language in the corresponding Federal regulations of 30 CFR 816.97 and 817.97. These sections currently require the protection of fish, wildlife and related environmental values using best technology currently available. The term ''best technology currently available'' is defined in §§ 87.1, 88.1, 89.1 and 90.1 and in Federal regulations in part as ''equipment, devices, systems, methods or techniques which will minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of those resources when practicable.'' The proposed changes are consistent with Federal regulations and with application of the term ''best technology currently available.'' No change has been made based upon these comments.
§§ 87.159, 88.133, 88.221, 88.334, 89.88 and 90.166. Postmining land use.
The MRAB at its October 23, 1997, subcommittee meeting, discussed the proposed revisions to these sections for deleting the requirement that the landowner provide a written statement approving alternative land uses proposed by mine operators. This revision had been proposed because there was no corresponding provision in Federal regulations. The MRAB and the Department feel it is in the best interests of all parties (that is, industry, the Department and the landowner) that this requirement be retained to ensure that the landowner and mine operators are in agreement on the postmining land use and to minimize litigation involving disputes as to the land use to which the mined site was restored following mining. Consequently, these sections have been modified to retain the requirement for landowner approval.
§§ 87.160, 88.231 and 88.335. Haul roads and access roads.
One commentator suggested maintaining the language in subsection (a) that haul roads and access roads shall be designed, constructed and maintained ''to prevent, to the maximum extent possible,'' erosion and contributions of sediment. The language ''to prevent, to the maximum extent possible,'' has been changed to ''control or prevent'' to conform with corresponding Federal regulations in 30 CFR 816.150(b) and 817.150(b). Coal operators must still design, construct and maintain haul roads and access roads in a manner that controls erosion and sedimentation and prevents pollution to streams and other waters. In addition, §§ 87.70 and 88.96, which are not affected by this rulemaking, require that sediment control measures comply with Chapter 102. No change has been made based upon the comment.
§§ 87.173, 89.67 and 90.147. Support facilities and utility installations.
One commentator suggested adding the word ''maximum'' to § 87.173(a)(2)(ii) to read ''to the maximum extent possible . . .'' The commentator suggested maintaining all of the language that is proposed to be deleted from § 89.67(a) and keeping the proposed additions to reinforce environmental protection. In addition, a recommendation was made by the commentator to maintain the current language of § 90.147 when the word ''prevent'' is used so that prevention to the maximum extent possible will be provided for the protection of fish, wildlife and related environmental issues.
These sections were proposed for change to track language in the corresponding Federal regulations in 30 CFR 816.181 and 817.181. These sections currently require the protection of fish, wildlife and related environmental values using best technology currently available. The term ''best technology currently available'' is defined in §§ 87.1, 89.1 and 90.1 and in Federal regulations. The proposed changes are consistent with Federal regulations and with application of the term ''best technology currently available.'' It should be recognized that these sections apply to locating, maintaining and using support facilities (such as, mine buildings and loading facilities) when conducting the mining operation. No change has been made based upon the comment.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits
These amendments were proposed for purposes of making the regulations no more stringent than Federal requirements and to modify regulations imposing disproportionate economic costs, lacking clarity or being too prescriptive or technology specific. The coal mining industry, the Department and local governments will benefit from these amendments.
The benefit to the regulated community will be a potential cost savings of approximately $28,000 annually. The savings to the regulated community is based upon: (1) eliminating the requirement to monitor and test runoff water for manganese, which amounts to an estimated annual savings of $24,000 based upon an estimated 1,000 water discharges monitored 4 times a year at a cost of $6 per sample (1,000 discharges × 4 samples × $6 per sample = $24,000); and (2) expanding the circumstances upon which a permit term may be extended which amounts to an estimated annual savings of $4,000 based upon an estimated 2 permits per year at a cost of $2,000 per permit application (2 permits × $2,000 per permit application = $4,000).
Compliance Costs
These changes in the regulations will impose no additional compliance costs on the regulated community.
Compliance Assistance Plan
The coal mining regulatory program has existed for several years in this Commonwealth. Compliance assistance will focus upon providing written notification of these changes to the coal mining industry. If necessary or requested, regional meetings with the industry will be arranged. Department technical guidance will be modified based upon these regulatory changes and the guidance made available to the coal mining industry.
G. Sunset Review
These final-form 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 April 16, 1997, the Department submitted a copy of this proposed rulemaking to 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 Department also provided IRRC and the Committees with copies of the comments, as well as other documentation.
In preparing these final-form regulations, the Department 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 Committees on March 16, 1998. IRRC met on March 26, 1998, 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 final-form regulations do not enlarge the purpose of the proposal published at 27 Pa.B. 2255.
(4) These final-form 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 Chapters 86--90, are amended by amending §§ 86.2, 86.31, 86.32, 86.34, 86.37, 86.40, 86.64, 86.70, 86.132--86.134, 86.174, 87.1, 87.62, 87.77, 87.93, 87.97, 87.101, 87.102, 87.106, 87.126, 87.127, 87.138, 87.144, 87.146, 87.159, 87.160, 87.166, 87.173, 87.174, 87.176, 87.209, 88.1, 88.42, 88.56, 88.83, 88.91, 88.92, 88.96, 88.118, 88.133, 88.138, 88.144, 88.187, 88.191, 88.221, 88.231, 88.237, 88.283, 88.291, 88.292, 88.296, 88.334, 88.335, 88.341, 88.492, 88.509, 89.38, 89.52, 89.65, 89.67, 89.82, 89.87, 89.88, 89.90, 90.1, 90.31, 90.40, 90.93, 90.97, 90.101, 90.102, 90.106, 90.134, 90.140, 90.147, 90.150 and 90.166 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 review and approval 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 immediately upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
ChairpersonFiscal Note: 7-307 No fiscal impact; (8) recommends adoption.
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 28 Pa.B. 1806 (April 11, 1998).)
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