[28 Pa.B. 2227]
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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 MINING OF COAL: GENERAL
Subchapter A. GENERAL PROVISIONS § 86.2. Scope.
This chapter specifies certain general procedures and rules for those persons who engage in coal mining activities. This chapter together with Chapters 87--90 specifies the procedures and rules for those who engage in coal mining activities.
Subchapter B. PERMITS
REVIEW, PUBLIC PARTICIPATION AND APPROVAL, DISAPPROVAL OF PERMIT APPLICATIONS AND PERMIT TERMS AND CONDITIONS § 86.31. Public notices of filing of permit applications.
(a) An applicant for a permit, transfer or renewal, or for revision as required by § 86.54 (relating to public notice of permit revision) shall place at the time of filing an application with the Department, an advertisement in a local newspaper of general circulation in the locality of the proposed coal mining activities at least once a week for 4 consecutive weeks. The advertisement shall contain, at a minimum, the following information:
(1) The name and business address of the applicant.
(2) A map or description which shall:
(i) Clearly show or describe towns, rivers, streams or other bodies of water, local landmarks and other information, including routes, streets or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area.
(ii) Clearly show or describe the exact location and boundaries of the proposed permit area, and the receiving stream.
(iii) State the name of the United States Geological Survey 7.5 minute quadrangle map which contains the area shown or described.
(iv) Indicate the north point, if a map is used.
(3) The location where a copy of the application is available for public inspection under subsection (b).
(4) The name and address of the Department's appropriate district or regional office to which written comments, objections or requests for informal conferences on the application may be submitted under §§ 86.32 and 86.34 (relating to opportunity for submission of written comments or objections on the permit application; and informal conferences).
(5) A concise statement describing the public road, the particular part to be relocated, where the relocation is to occur and the duration of the relocation, if an applicant seeks a permit to mine within 100 feet (30.48 meters) of the outside right-of-way of a public road or to relocate a public road.
(6) If an applicant seeks a variance to conduct coal mining activities within 100 feet (30.48 meters) of a stream, a description of the activities and the name of the stream.
(b) No later than the first date of the newspaper advertisement under subsection (a), the applicant for a new permit, except as provided in § 86.35(a) (relating to public availability of information in permit applications), shall file a complete copy of the application for the public to copy and inspect at a public office approved by the Department in the county where the coal mining activities are to occur. The applicant shall file a subsequent revision of the application for a new permit with that office at the same time the revision is submitted to the Department. In the case of repermitting under §§ 86.12 and 86.14 (relating to continued operation under interim permits; and permit application filing deadlines), permit renewals under § 86.55 (relating to permit renewals: general requirements), permit revisions under § 86.52 (relating to permit revisions) and permit transfers under § 86.56 (relating to transfer of permit), the permittee shall indicate in the public notice that a copy of the permit and accompanying documents is available for inspection and copying at the appropriate district or regional office.
(c) Upon receipt of a complete application, the Department will publish notice of the proposed activities in the Pennsylvania Bulletin and send notice to the following:
(1) By registered mail, the city, borough, incorporated town or township in which the activities are located.
(2) Sewage and water treatment authorities and water companies that may be affected by the activities.
(3) Governmental planning agencies with jurisdiction to act with regard to land use, air or water quality planning in the area of the proposed activities.
(4) Federal, State and local government agencies with jurisdiction over or an interest in the area of the proposed activities, including, but not limited to, general governmental entities and fish and wildlife and historic preservation agencies.
(d) The content of the notice shall include:
(1) The application number.
(2) The name and address of the applicant.
(3) The township and county in which the operation is located.
(4) The receiving stream.
(5) A brief description of the operation and the location.
(6) The location where a copy of the application may be inspected.
(7) The location where comments on the application may be submitted.
(8) A statement that the application is for a new permit, a renewal of an existing permit or the transfer of an existing permit to a new operator.
(e) The applicant for a permit, transfer or renewal or revision for surface mining activities who proposes to conduct surface mining activities within 125 feet (38.1 meters) of a permitted or registered oil or gas well shall send to each permittee or to any owner or agent of any owner of a permitted or registered oil or gas well a notice, by certified mail, return receipt requested, that the applicant intends to conduct surface mining activities within 125 feet (38.1 meters) of the well. The notice shall include the information required by subsection (a)(1)--(4). The notice shall be sent by certified mail prior to the filing of the surface mining activities permit application with the Department. If the applicant demonstrates that it has made a good faith effort to comply with this requirement by mailing the required notice to the address of record or last known address of the registered well owner or permittee, and the notice has been returned as undeliverable or refused, notice may be deemed made by publication in compliance with subsection (a). Where a permittee under an approved surface mining permit proposes to conduct surface mining activities within 125 feet (38.1 meters) of a permitted or registered oil or gas well, and if publication of the proposed activities is not required, the surface mining permittee shall send the notice required by this subsection by certified mail, return receipt requested, to the owner, agent of an owner or permittee of a permitted or registered oil or gas well within 125 feet (38.1 meters) of the activities at least than 60 days prior to conducting the activities.
§ 86.32. Opportunity for submission of written comments or objections on the permit application.
(a) Written comments or objections on the permit application or application for permit revision may be submitted to the Department within 30 days after the last publication of the newspaper advertisement placed by the applicant under § 86.31(a) (relating to public notices of filing of permit applications) by a person or an officer or head of a Federal, State or local government agency or authority. In addition to submitting comments, the permittee, owner or agent of an owner of an oil or gas well who receives a notice required by § 86.31(e) may provide the Department, within 30 days after the last publication of the newspaper advertisement placed by the applicant, or if publication of the advertisement is not required, within 45 days after receipt of the notice required by § 86.31(e), a description of the measures the well permittee, owner or agent 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. The Department will also publish notice of permit applications in the Pennsylvania Bulletin.
(b) The Department will immediately transmit comments or objections received under this section to the applicant and the office where the applicant filed a copy of the application for public inspection under § 86.31(b).
§ 86.34. Informal conferences.
(a) A person or the officer or head of a Federal, State or local government agency or authority or the owner or operator of an oil and gas well who receives a notice required by § 86.31(e) (relating to public notices of filing of permit applications) may, in writing, request that the Department hold an informal conference on an application for a permit. The request shall:
(1) Briefly summarize the issues or objections to be raised by the requestor at the conference.
(2) State whether the requestor desires to have the conference conducted in the locality of the proposed coal mining activities.
(3) Be filed with the Department within 30 days after the last publication of the newspaper advertisement placed by the applicant under § 86.31(a) or within 30 days of receipt of notice by the public entities to whom notification is provided under § 86.31(c).
(b) Except as provided in subsection (c), if an informal conference is requested in accordance with subsection (a), the Department will hold an informal conference within 60 days of the close of the public comment period. The informal conference will be conducted according to the following:
(1) The conference will be held in the locality of the proposed mining, if requested under subsection (a)(2).
(2) The date, time and location of the informal conference will be advertised by the Department in a newspaper of general circulation in the locality of the proposed mine at least 2 weeks prior to the scheduled conference.
(3) If requested, in writing, by a conference requestor in a reasonable time prior to the conference, the Department may arrange with the applicant to grant parties to the conference access to the permit area for the purpose of gathering information relevant to the conference.
(4) The conference will be conducted by a representative of the Department who may accept oral or written statements and other relevant information from a party to the conference. An electronic or stenographic record will be made of the conference proceeding, unless waived by all parties. The record will be maintained and will be accessible to the parties of the conference until final release of the applicant's performance bond under Subchapter F (relating to bonding and insurance requirements).
(c) If all parties requesting the informal conference stipulate agreement before the requested informal conference and withdraw their request, the informal conference need not be held.
(d) Informal conferences held in accordance with § 86.103(c) (relating to procedures) may be used by the Department as the public hearing required under proposed uses or relocation of public roads.
(e) The Department will give its findings of the conference to the permit applicant and to each person who is a party to the conference within 60 days of the conference.
(f) Within 60 days of the informal conference, the Department will notify the applicant of its decision to approve, disapprove or of its intent to disapprove the application subject to the submission of additional information to resolve deficiencies.
§ 86.37. Criteria for permit approval or denial.
(a) A permit or revised permit application will not be approved unless the application affirmatively demonstrates and the Department finds, in writing, on the basis of the information in the application or from information otherwise available, which is documented in the approval, and made available to the applicant, that the following apply:
(1) The permit application is accurate and complete and that the requirements of the acts and this chapter have been complied with.
(2) The applicant has demonstrated that the coal mining activities can be feasibly accomplished as required by the act and this chapter under the operation and reclamation plan contained in the application.
(3) The applicant has demonstrated that there is no presumptive evidence of potential pollution of the waters of this Commonwealth.
(4) The assessment of the probable cumulative impacts of all anticipated coal mining in the general area on the hydrologic balance as described in § 87.69, § 88.49, § 89.36 or § 90.35 has been made by the Department, and the activities proposed under the application have been designed to prevent material damage to the hydrologic balance outside the proposed permit area.
(5) The proposed permit area is not one of the following:
(i) Included within an area designated unsuitable for mining under Subchapter D (relating to areas unsuitable for mining).
(ii) Within an area which has been included in a petition for designation under § 86.124(a)(6) (relating to procedures: initial processing, recordkeeping and notification requirements).
(iii) On lands subject to the prohibitions or limitations of Subchapter D.
(iv) Within 100 feet (30.48 meters) of the outside right-of-way line of any public road, except as provided for in Subchapter D.
(v) Within 300 feet (91.44 meters) from any occupied dwelling, except as provided for in Subchapter D.
(vi) Within 100 feet (30.48 meters) of a stream, except as provided for in § 86.102 (relating to areas where mining is prohibited or limited).
(6) The proposed activities will not adversely affect any publicly owned parks or places included on the National Register of Historic Places, except as provided for in Subchapter D. The effect of the proposed coal mining activities on properties listed on or eligible for listing on the National Register of Historic Places has been taken into account by the Department. This finding may be supported in part by inclusion of appropriate permit conditions or operational plan changes to protect historic resources, or a documented decision that no additional protective measures are necessary.
(7) Prior to approval of the bond under Subchapter F (relating to bonding and insurance requirements), a right of entry has been obtained from the landowner for each parcel of land to be affected by the coal mining activities in accordance with § 86.64 (relating to right of entry).
(8) The applicant has submitted proof that a violation related to the mining of coal by the applicant, a person owned or controlled by the applicant or a person who owns or controls the applicant under the definition of ''owned or controlled'' or ''owns or controls'' in § 86.1 (relating to definitions) or by a related party of the acts, a rule, regulation, permit or license of the Department has been corrected or is in the process of being corrected to the satisfaction of the Department, whether or not the violation relates to an adjudicated proceeding, agreement, consent order or decree, or which resulted in a cease order or civil penalty assessment. A permit issued under this paragraph on the basis that a violation is in the process of being corrected or pending the outcome of an appeal, and the appropriate regulatory authority program having jurisdiction over the violation provides for a stay of execution of the abatement procedure or a court of competent jurisdiction has issued a supersedeas providing that relief, will be issued conditionally.
(9) A statement from the applicant that all reclamation fees required by 30 CFR Part 870 (relating to abandoned mine reclamation fees) have been paid.
(10) There are no past or continuing violations which show the applicant's, a person owned or controlled by the applicant or a person who owns or controls the applicant under the definition of ''owned or controlled'' or ''owns or controls'' in § 86.1, lack of ability or intention to comply with the acts or the regulations promulgated thereunder, whether or not the violation relates to an adjudicated proceeding, agreement, consent order or decree, or which resulted in a cease order or civil penalty assessment. If the Department makes a finding that the applicant or the operator specified in the application or a person who owns or controls the applicant or operator or a person owned or controlled by the applicant or operator, has demonstrated a pattern of willful violations of the acts of a nature and duration and with resulting irreparable damage to the environment as to indicate an intent not to comply with the acts, a permit will not be issued.
(11) The applicant has submitted proof that a violation by the applicant or by a person owned or controlled by the applicant or by a person who owns or controls the applicant under the definition of ''owned or controlled'' or ''owns or controls'' in § 86.1, of a law, rule or regulation of the United States or a state--other than the law of the Commonwealth--law, rule or regulation pertaining to air or water environmental protection enacted under Federal law, has been corrected or is in the process of being satisfactorily corrected. A permit issued under this paragraph on the basis that a violation is in the process of being corrected or pending the outcome of an appeal, and the appropriate regulatory authority program having jurisdiction over the violation provides for a stay of execution of the abatement procedure or a court of competent jurisdiction has issued a supersedeas providing that relief, will be issued conditionally.
(12) The applicant shall submit the bond required under Subchapter F prior to the issuance of the permit.
(13) The applicant has satisfied the requirements of § 87.53, § 88.32, § 88.491(k), § 89.121 or § 90.22.
(14) The proposed postmining land use of the permit area meets the requirements of § 87.159, § 88.89, § 88.183, § 88.289, § 88.493, § 89.88 or § 90.166.
(15) The proposed activities would not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats as determined under the Endangered Species Act of 1973 (16 U.S.C.A. §§ 1531--1544).
(16) A statement from the applicant that State and Federal final civil penalty assessments have been paid. Final civil penalty assessments are civil penalty assessments which have not been appealed within 30 days of assessment or appealed civil penalty assessments which have been adjudicated by the EHB or other applicable judicial forum. For purposes of this subsection, civil penalty assessments include State and Federal civil penalty assessments related to coal mining activities which are assessed by one of the following:
(i) The Department under the authority of the acts.
(ii) The Federal Office of Surface Mining Reclamation and Enforcement (OSMRE) under the authority of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. §§ 1201--1328).
(iii) A State regulatory authority which has been granted primary jurisdiction by OSMRE to implement the Federal coal mining regulatory program within its boundaries.
(b) An incremental phase approval of the permit will not be granted to conduct mining or reclamation operations or to expand mining or reclamation operations within a permit area if the Department has already issued an incremental phase approval for the area to another permittee, except for an area used for access or haul roads. An incremental phase approval of the permit will not be granted to conduct mining or reclamation operations, or permission to expand mining or reclamation operations within a permit area which has been limited to a portion or phase of the entire area until the applicant:
(1) Has filed with the Department a bond in accordance with § 86.143 (relating to requirements to file a bond).
(2) Meets the requirements of subsection (a)(7)--(9).
(c) After an application is approved, but before the permit is issued, the Department will reconsider its decision to approve the application, based on the compliance review required by subsection (a)(8), (10) and (11) in light of new information submitted under §§ 86.62(d) and 86.63(c) (relating to identification of interests; and compliance information).
§ 86.40. Permit terms.
(a) Each permit shall be issued for a fixed term not to exceed 5 years. A longer fixed permit term may be granted, if:
(1) The application is full and complete for the specified longer term.
(2) The applicant shows that a specified longer term is reasonably needed to allow the applicant to obtain necessary internal or external financing of equipment, facilities or structures for the opening or continuance of the operation, and this need is confirmed in writing by the applicant's source for the financing.
(b) A permit shall terminate if the permittee has not begun the coal mining activities covered by the permit within 3 years of the issuance of the permit. However, the Department may grant reasonable extensions of time for commencement of these activities upon receipt of a written statement showing that the extensions of time are necessary if litigation precludes the commencement or threatens substantial economic loss to the permittee or if there are conditions beyond the control and without the fault or negligence of the permittee. Requests for extensions shall be submitted to the Department prior to expiration of the permit.
(c) With respect to coal to be mined for use only in a synthetic fuel facility or specified major electric generating facility, the permittee shall be deemed to have commenced coal mining activities at the time that the construction of the synthetic fuel or generating facility is initiated.
MINIMUM REQUIREMENTS FOR LEGAL FINANCIAL COMPLIANCE AND RELATED INFORMATION § 86.64. Right of entry.
(a) An application shall contain a description of the documents upon which the applicant bases his legal right to enter and commence coal mining activities within the permit area and whether that right is the subject of pending court litigation. The description shall identify the documents by type and date of execution, identify the specific lands to which the document pertains and explain the legal rights claimed by the applicant.
(b) Where the private mineral estate to be mined has been severed from the private surface estate, an applicant shall also submit one of the following:
(1) A copy of the written consent of the surface owner for the extraction of coal by surface mining methods.
(2) A copy of the conveyance that expressly grants or reserves the right to extract coal by surface mining methods.
(3) If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under the law of the Commonwealth, the applicant has the legal authority to extract the coal by those methods.
(c) This section will not be construed to provide the Department with the authority to adjudicate property rights disputes.
(d) Except for permit applications based upon leases in existence on January 1, 1964, for bituminous coal surface mines, or leases in existence on January 1, 1972, for anthracite coal surface mining operations or permit applications for coal refuse disposal areas, coal preparation facilities which are not situated on a surface mining permit area and the surface activities of underground mines, the application for a permit shall include, upon a form prepared and furnished by the Department, the written consent of the landowner to enter upon land to be affected by the activities by the operator and by the Commonwealth and of its authorized agents prior to the initiation of surface mining activities, during surface mining activities, and for 5 years after the activities are completed or abandoned for the purpose of reclamation, planting and inspection or for the construction of pollution abatement facilities as deemed necessary by the Department for the purpose of the acts. The forms shall be deemed to be recordable documents and, prior to the initiation of coal mining activities under the permit, the forms shall be recorded by the applicant at the office of the recorder of deeds in the county in which the area to be affected under the permit is situated.
(1) In the case of a lease in existence on January 1, 1964, for bituminous coal surface mines, or leases in existence on January 1, 1972, for anthracite coal surface mining operations, the application for permit shall include, upon a form prescribed and furnished by the Department, a notice of the existence of the lease and a description of the chain of title.
(i) The forms shall be deemed to be recordable documents, and, prior to the initiation of coal mining activities under the permit, the forms shall be recorded by the applicant at the office of the recorder of deeds in the county in which the area to be affected under the permit is situated.
(ii) The forms shall require the information and execution necessary to provide entry upon land to be affected by the operation without constraints pertaining to the assignability, transferability or duration of the consent, except as provided for in the acts. This form may not alter or constrain the contractual agreements and rights of the parties thereto.
(2) In the case of permits for coal refuse disposal areas, coal preparation facilities which are not situated on a surface mining permit area, and underground mines, the applicant shall describe the documents upon which the applicant bases the right to enter upon the land and conduct coal mining activities. The Department will have access to the permitted surface facilities and lands during the mining activities and for 5 years after completion or abandonment of the mining and reclamation activities for the purpose of reclamation, planting and inspection or for the construction of pollution-abatement facilities deemed necessary by the Department. The Department may issue orders to require access. If a landowner fails or refuses to comply with an order to require access, the landowner shall be liable for reasonable legal expenses incurred by the Department in enforcing the order. For purposes of issuing orders and imposing liability for reasonable legal expenses under this subsection, a landowner includes a person holding title to, or having a proprietary interest in, surface or subsurface rights.
(3) The requirements of this subsection are in addition to the information required by subsections (a) and (b).
(e) For the purpose of this section the term ''lease'' means an agreement in which the surface landowner is the lessor and the applicant is the lessee or the assignee of the lessee. A deed of severance is not a lease.
(f) The information required in this section shall be made part of the permit application prior to approval of the bond under Subchapter F (relating to bonding and insurance requirements).
§ 86.70. Proof of publication.
An application shall contain an intent to publish and a copy of the language to appear in the public notice demonstrating that the advertisement requirement of § 86.31(a) (relating to public notices of filing of permit applications) is in the process of being satisfied, and prior to the issuance of the permit, but no later than 4 weeks after the last date of advertisement, the applicant shall submit a copy of the advertisements as required by § 86.31(a) or the original notarized proof of publication to the Department.
Subchapter E. COAL EXPLORATION § 86.132. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Coal exploration--The field gathering of surface or subsurface geologic, physical or chemical data by mapping, trenching, drilling, geophysical or other techniques necessary to determine the quality of overburden and coal of an area, or the gathering of environmental data, to establish the conditions of an area.
Substantially disturb--For purposes of coal exploration, including, but not limited to, to have a significant impact upon land, air or water resources by activities such as blasting, mechanical excavation or altering coal or water exploratory holes or wells, construction of roads and other access routes, removal of topsoil or overburden and the placement of structures, excavated earth or other debris on the surface of land.
§ 86.133. General requirements.
(a) A person who intends to conduct coal exploration shall, prior to conducting the exploration, file with the Department one copy of a written notice of intention to explore for each exploration area at least 10 days prior to the exploration on forms provided by the Department.
(b) The notice shall include:
(1) The name, address and telephone number of the person seeking to explore.
(2) The name, address and telephone number of the representative who will be present at and responsible for conducting the exploration activities.
(3) A map, at a scale of 1:24,000, of the exploration area showing the extent of the exploration, location of drill holes and exploration trenches, existing and proposed roads, occupied dwellings, topographic features, bodies of water and pipelines.
(4) A statement of the period of intended exploration.
(5) A description of the practices proposed to be followed to protect the environment from adverse impacts as a result of the exploration activities.
(c) A person who conducts coal exploration which substantially disturbs the natural land surface shall comply with § 86.134 (relating to coal exploration performance and design standards).
(d) The Department will, except as otherwise provided in § 86.137(b) (relating to public availability of information), place the notices on public file and make them available for public inspection and copying during regular office hours at the established fee.
(e) A person who intends to conduct coal exploration in which coal will be removed shall, prior to conducting the exploration, obtain a permit under this chapter. Prior to removal of coal, the Department may waive the requirements for the permit to enable the testing and analysis of coal properties, if 250 tons (226 metric tons) or less are removed. The removal of more than 250 tons (226 metric tons) of coal during coal exploration requires a permit under this chapter.
(f) Coal exploration on lands where a petition to declare an area unsuitable for mining has been received by the Department or on lands designated unsuitable for mining shall by conducted only after written approval is granted by the Department. The Department may prescribe conditions and requirements necessary to preserve the values sought to be protected in the petition before approving coal exploration in these areas. The exploration activities shall be conducted in accordance with § 86.129 (relating to coal exploration) to insure that the exploration activity does not interfere with a value for which the area has been designated unsuitable for mining.
(g) A person who conducts coal exploration by means of boreholes or coreholes shall case, line, seal or otherwise manage the hole to prevent degradation of the quality of groundwater and surface water, minimize disturbance to the prevailing hydrologic balance and ensure the safety of people, livestock, fish and wildlife, and machinery in the permit and adjacent area, and meet the requirements of §§ 89.54 and 89.83 (relating to preventing discharges from underground mines; and closing of underground mine openings).
§ 86.134. Coal exploration performance and design standards.
The following performance standards are applicable to coal exploration which substantially disturbs the land surface:
(1) Habitats of unique value for fish, wildlife and other related environmental values may not be disturbed during coal exploration.
(2) Roads used for coal exploration shall comply with the following:
(i) A new road in the exploration area shall comply with §§ 87.160 and 87.166 (relating to haul roads and access roads; and haul roads and access roads: restoration).
(ii) Existing roads may be used for exploration in accordance with the following:
(A) Applicable Federal, State and local requirements shall be met.
(B) If the road is significantly altered for exploration, including, but not limited to, change of grade, widening or change of route, or if the use of the road for exploration contributes additional suspended solids to streamflow or runoff, paragraph (7) applies to the areas of the road which are altered or which result in the additional contributions.
(C) If the road is significantly altered for exploration activities or will remain as a permanent road after exploration activities are completed, the person conducting exploration shall ensure that the requirements of §§ 87.160 and 87.166, as appropriate, are met for the design, construction, alteration and maintenance of the road.
(iii) Promptly after exploration activities are completed, existing roads used during exploration shall be reclaimed to one or more of the following:
(A) A condition equal to or better than their preexploration condition.
(B) The condition required for permanent roads under §§ 87.160 and 87.166, as appropriate.
(3) If excavations, artificial flat areas or embankments are created during exploration, these areas shall be returned to the approximate original contour promptly after the features are no longer needed for coal exploration.
(4) Topsoil shall be removed, stored and redistributed on disturbed areas as necessary to assure successful revegetation.
(5) All areas disturbed by coal exploration activities shall be revegetated in a manner that encourages prompt revegetation and recovery of a diverse, effective and permanent vegetative cover.
(6) With the exception of small and temporary diversions of overland flow of water around new roads, drill pads and support facilities, ephemeral, intermittent or perennial streams may not be diverted during coal exploration activities. Overland flow of water shall be diverted in a manner that:
(i) Prevents erosion.
(ii) Prevents additional contributions of suspended solids to streamflow or runoff outside the exploration area, to the extent possible using the best technology currently available.
(iii) Complies with other applicable State or Federal requirements.
(7) Each exploration hole, borehole, well or other underground opening created or encountered by exploration shall meet the requirements of §§ 87.93, 89.54 and 89.83 (relating to casing and sealing of drilled holes; preventing discharges from underground mines; and closing of underground mine openings).
(8) Facilities and equipment shall be removed from the exploration area promptly when they are no longer needed for exploration, except for facilities and equipment that the Department determines may remain to do one of the following:
(i) Provide additional environmental quality data.
(ii) Reduce or control the onsite and offsite effects of the exploration activities.
(iii) Facilitate future surface mining and reclamation operations by the person conducting the exploration, under an approved permit.
(9) Coal exploration shall be conducted in a manner which minimizes disturbance of the prevailing hydrologic balance, and shall include sediment control measures, or sedimentation ponds which comply with Chapter 89, Subchapter A (relating to erosion and sedimentation control).
(10) Toxic- or acid-forming materials shall be handled and disposed of in accordance with §§ 87.110 and 87.145 (relating to hydrologic balance: acid-forming and toxic-forming spoil; and backfilling and grading: covering coal and acid-forming and toxic-forming materials.)
(11) Coal exploration and related reclamation activities shall be conducted to avoid damage to, or destruction of, known historic resources.
Subchapter F. BONDING AND INSURANCE REQUIREMENTS
RELEASE OF BONDS § 86.174. Standards for release of bonds.
(a) When the entire permit area or a portion of a permit area has been backfilled or regraded to the approximate original contour or approved alternative, and when drainage controls have been installed in accordance with the approved reclamation plan, Stage 1 reclamation standards have been met.
(b) When the entire permit area or a portion of the permit area meets the following standards, Stage 2 reclamation has been achieved:
(1) Topsoil has been replaced and revegetation has been successfully established in accordance with the approved reclamation plan.
(2) The reclaimed lands are not contributing suspended solids to stream flow or runoff outside the permit area in excess of the requirements of the acts, regulations thereunder or the permit.
(3) If prime farmlands are present, the soil productivity has been returned to the required level when compared with nonmined prime farmland in the surrounding area, to be determined from the soil survey performed under the reclamation plan approved in Chapters 87--90.
(4) If a permanent impoundment has been approved as an alternative postmining land use, the plan for management of the permitted impoundment has been implemented to the satisfaction of the Department.
(c) When the entire permit area or a portion of the permit area meets the following performance standards, State 3 reclamation has been achieved:
(1) The permittee has successfully completed mining and reclamation operations in accordance with the approved reclamation plan so that the land is capable of supporting postmining land use approved under §§ 87.159, 88.133, 89.88 and 90.166.
(2) The permittee has achieved compliance with the requirements of the acts, regulations thereunder, the conditions of the permit and the applicable liability period under § 86.151 (relating to period of liability) has expired.
(d) Additional standards for release of bonds for underground mining operations are as follows: release of the bond posted for mine subsidence, 10 years after completion of mining and reclamation.
CHAPTER 87. SURFACE MINING OF COAL
Subchapter A. GENERAL PROVISIONS § 87.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * *
Land use--Specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur. Changes of land use from one of the following categories to another shall be considered as a change to an alternative land use which is subject to approval by the Department. Land use may be defined as:
* * * * *
(x) Unmanaged natural habitat. Idle land which does not require a specific management plan after the reclamation and revegetation have been accomplished.
* * * * *
Subchapter D. SURFACE COAL MINES: MINIMUM REQUIREMENTS FOR OPERATION AND RECLAMATION PLAN § 87.62. Operational information.
An application shall contain a description of the surface mining activities proposed to be conducted during the life of the mine within the proposed permit area, including, at a minimum, the following:
(1) A description of the type and method of coal mining procedures, proposed engineering techniques and the major equipment to be used.
(2) An explanation of the construction, modification, use, maintenance and removal of the following facilities--unless retention of the facilities is approved for postmining land use under § 87.159 (relating to postmining land use):
(i) Dams, embankments and other impoundments.
(ii) Overburden and topsoil handling and storage area and structures.
(iii) Coal removal, handling, storage, cleaning and transportation area and structures.
(iv) Spoil, coal processing waste and noncoal waste removal, handling, storage, transportation and disposal areas and structures.
(v) Mine facilities.
(vi) Water and air pollution control facilities.
(vii) Erosion control facilities.
(3) A description or explanation of the relative sequence of surface mining activities, including the relative timing of various phases and the estimated life of the mine.
(4) A demonstration that the notification requirements of § 86.31(e) (relating to public notices of filing of permit applications) have been satisfied.
§ 87.77. Protection of public parks and historic places.
(a) For publicly owned parks or historic places listed on the National Register of Historic Places that may be adversely affected by the proposed operations, each application shall describe the measures to be used to accomplish the following:
(1) Prevent adverse impacts and meet the requirements of Chapter 86, Subchapter D (relating to areas unsuitable for mining).
(2) Minimize adverse impacts, if valid existing rights exist or joint agency approval is to be obtained under Chapter 86, Subchapter D.
(b) The Department may require the applicant to protect historic or archaeological properties listed on or eligible for listing on the National Register of Historic Places through appropriate mitigation and treatment measures. Appropriate mitigation and treatment measures may be required to be taken after permit issuance. The required measures shall be completed before the properties are affected by surface mining activity.
Subchapter E. SURFACE COAL MINES: MINIMUM ENVIRONMENTAL PROTECTION PERFORMANCE STANDARDS § 87.93. Casing and sealing of drilled holes.
(a) Each exploration hole, other drill or borehole, well or other exposed underground opening (except for holes solely drilled and used for blasting) shall be cased, sealed or otherwise managed as approved by the Department in order to:
(1) Prevent acid or other toxic drainage from entering groundwaters or surface waters.
(2) Minimize disturbance to the prevailing hydrologic balance.
(3) Ensure the safety of people, property, livestock, fish and wildlife and machinery in the permit and adjacent area.
(4) Prevent groundwater and surface water from entering underground mine workings.
(b) If these openings are uncovered or exposed by surface mining activities within the permit area, they shall be permanently closed unless approved for water monitoring, or otherwise managed in a manner approved by the Department.
(c) Use of a drilled hole, borehole or monitoring well as a water well shall meet the provisions of § 87.117 (relating to hydrologic balance: surface water monitoring).
(d) Gas and oil wells shall be sealed in accordance with the Oil and Gas Act (58 P. S. §§ 601.101--601.605).
(e) A solid barrier of undisturbed earth, 125 feet (38.1 meters) in radius shall be maintained around all oil and gas wells, except in the case of one of the following:
(1) The well is sealed in accordance with subsection (d).
(2) The Department approves, in writing, a lesser distance, if:
(i) Access to the well is provided at all times.
(ii) The integrity of the well is maintained.
(iii) The measures included in the permit to minimize damage, destruction or disruption of services under § 87.173(b) (relating to support facilities and utility installations) are implemented.
§ 87.97. Topsoil: removal.
(a) All topsoil shall be removed from the areas to be disturbed in a separate layer prior to drilling, blasting, mining or other surface disturbance. A vegetative cover which would interfere with the removal and use of the topsoil shall be removed prior to topsoil removal.
(b) In the event removal of vegetative matter, topsoil or other materials may result in erosion which may cause air or water pollution, the size of the area from which topsoil is removed at any one time shall be limited and other measures shall be taken that the Department may approve or require to control erosion.
(c) If topsoil is less than 12 inches (30.48 centimeters), a 12-inch (30.48 centimeters) layer which includes the topsoil and the unconsolidated materials immediately below the topsoil shall be removed, segregated, conserved and replaced as the final surface soil layer. If the topsoil and the unconsolidated material measure less than 12 inches (30.48 centimeters), the topsoil and all unconsolidated material shall be removed, segregated, conserved and replaced as the final surface soil layer.
(d) On areas that have been previously affected by mining and which have no available topsoil or subsoil, sufficient material best suited to support vegetation shall be segregated, conserved and redistributed as the final surface layer.
(e) The B horizon and portions of the C horizon, or other underlying layers demonstrated to have qualities for comparable root development, shall be segregated and replaced as subsoil if either of these is necessary to ensure soil productivity consistent with the approved postmining land use.
(f) When approved by the Department in writing, other materials may be substituted for or used as a supplement to topsoil if the operator demonstrates that the resulting soil medium is equal to or more suitable than topsoil for sustaining vegetation and soil productivity. In making this demonstration, the Department may require chemical and physical analyses of the substituted material and topsoil. These analyses may include determinations of pH, net acidity or alkalinity, phosphorus, potassium, texture class, field site trials or greenhouse tests, or other analyses as required by the Department.
§ 87.101. Hydrologic balance: general requirements.
(a) Surface mining activities shall be planned and conducted to minimize disturbances to the prevailing hydrologic balance in the permit and adjacent areas and to prevent material damage to the hydrologic balance outside the permit area. The Department may require additional preventative, remedial or monitoring measures to assure that material damage to the hydrologic balance outside the permit area is prevented.
(b) Changes in water quality and quantity, the depth of groundwater, and the location of surface water drainage channels shall be minimized so that the approved postmining land use of the permit area is not adversely affected.
(c) The treatment requirements and effluent limitations established under § 87.102 (relating to hydrologic balance: effluent standards) may not be violated.
(d) Each person who conducts surface mining activities shall conduct the mining and reclamation operation to prevent water pollution and, when necessary, operate and maintain the necessary water treatment facilities until applicable treatment requirements and effluent limitations established under § 87.102 are achieved and maintained.
(e) Surface mining activities shall be planned and conducted to prevent to the maximum extent practical the accumulation of water in the pit. Pit water shall be collected and pumped to approved water treatment facilities. Pit water may not be discharged from the surface mining operation by gravity drains.
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