PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CH. 86]
Coal Mining
[32 Pa.B. 2217] The Environmental Quality Board (Board) proposes to amend Chapter 86 (relating to surface and underground mining: general) to read as set forth in Annex A. The proposed rulemaking addresses the extraction of coal incidental to government-financed highway construction or reclamation projects.
This proposal was adopted by the Board at its meeting of March 19, 2002.
A. Effective Date
The proposed rulemaking will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information contact Evan Shuster, Chief, Division of Permits, Bureau of Mining and Reclamation, P. O. Box 8461, Rachel Carson State Office Building, Harrisburg, PA 17105-8461, (717) 787-5103; or Bo Reiley, 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 proposed rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
The regulation is proposed under the authority of section 4.2 of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. § 1396.4b(a)) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
D. Background and Purpose
The rulemaking proposes to add section § 86.6 (relating to extraction of coal incidental to government-financed highway construction or reclamation projects) to exclude the extraction of coal incidental to government-financed highway construction or government-financed reclamation projects from the requirements of this chapter and Chapters 87 and 88 (relating to surface mining of coal; and anthracite coal). Section 3.1 of the SMCRA (52 P. S. § 1396.3a) provides, among other things, that ''surface mining activities'' do not include the extraction of coal or coal refuse removal under a government-financed reclamation contract, or the extraction of coal as an incidental part of Federal, State or local government-financed highway construction under regulations promulgated by the Board. Since the Department never saw the need for these regulations, none were ever proposed for promulgation by the Board.
Recently, the Department received a request from the Department of Transportation (DOT) to amend Chapter 86 to exclude coal extraction on government-financed highway construction projects from regulation under the coal mining regulations. DOT's specific concern is the proposed realignment and reconstruction of US Route 322 in Centre County, which will involve the excavation of coal-bearing strata in two areas that have been designated unsuitable for mining--Cold Stream Run (UFM Petition 14829901) and Black Bear Run (UFM Petition 14829902) (25 Pa. Code § 86.130(b)(2) and (4) (relating to areas designated as unsuitable for mining)). Given this request, the General Assembly's mandate as set forth in the SMCRA and the Board's statutory authority, the Department proposes to exclude coal extraction, from government-financed highway construction and government-financed reclamation projects, from the requirements of Chapters 86--88.
While the extraction of coal as an incidental part of Federal, State or local government financed highway construction is proposed to no longer be subject to the requirements of Chapters 86--88, potential environmental impacts from highway construction are still regulated under both Federal and State law. Virtually all DOT highway construction projects are funded, at least in part, by Federal tax dollars. Because of this Federal funding, DOT's projects must comply with the National Environmental Policy Act of 1970 (NEPA) (42 U.S.C.A. §§ 4321--4370(e)). The NEPA procedural requirements are very thorough and can take as long as 2 to 3 years to complete for a highway project. In general, this process requires notice to all potentially affected parties, a preliminary interagency ''scoping'' meeting to identify areas of concern, an environmental analysis, a determination of whether the project will have significant environmental impacts, notice and opportunity to comment on that determination and the agency responses to those comments.
In addition, whether the project is partially funded by Federal tax dollars or is 100% State funded, DOT must comply with section 2002(e) of The Administrative Code 1929 (71 P. S. § 512(e)(15)) (Act 120) which requires it to ''consult with appropriate officials as designated by the chief administrative officer of the . . . Department of Environmental [Protection] . . . regarding the environmental hazards . . . conservation . . . recreation and social considerations that may arise by reason of the location, design, construction or reconstruction of any transportation or air facility.''
Act 120 also requires DOT to follow the Federally mandated hearing procedures under 23 U.S.C.A. and 49 U.S.C.A. (relating to highwqays; and transportation) in acquiring a new right-of-way even if no Federal funds are involved. At these hearings, DOT must consider the impact of the proposed project on air, erosion, wildlife, the general ecology, noise, air and water pollution and historic landmarks. DOT may not proceed with the project unless it makes a written finding in the Pennsylvania Bulletin that there is no significant impact on the listed environmental elements or that there is no prudent alternative.
Given the procedural requirements under the NEPA and Act 120, the Department believes that it will receive adequate notice and opportunity to comment on any highway project that may impact the environmental resources of a particular area. In turn, the Department will recommend ways to protect those resources. Moreover, all Federal, State and local government-financed highway projects are not exempt from other Department permitting requirements like those under Chapters 92, 102 and 105 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance; erosion and sediment control; and dam safety and waterway management).
Proposed § 86.6 also restates the SMCRA exemption for coal extraction incidental to government-financed reclamation. This provision is included in § 86.6 so that it more closely parallels the exemptions in the SMCRA. Moreover, these exclusions are consistent with the Fed eral Office of Surface Mining, Reclamation and Enforcement (OSM) regulations in 30 CFR Part 707 (relating to exemption for coal extraction incident to government-financed highway or other construction).
The proposed regulation was reviewed and discussed on October 25, 2001, Mining and Reclamation Advisory Board (MRAB), but was referred to the MRAB's Regulatory, Legislative and Technical Committee (Committee) for further consideration. Several MRAB members expressed concern that the unique resources, which led to areas being designated unsuitable for mining, won't be adequately protected. The Committee met on November 19, 2001, and unanimously voted to recommend approval of the proposal to the MRAB with the understanding that the Department will establish internal notification procedures to protect the unique resources in areas designated unsuitable for mining. On January 3, 2002, the MRAB supported this position.
E. Summary of Regulatory Requirements
Section 86.6 excludes the extraction of coal incidental to government-financed highway construction and government-financed reclamation projects from the regulatory requirements of Chapters 86--88. The statutory basis for exempting these activities is found in section 3 of the SMCRA (52 P. S. § 1396), under the definition of surface mining activities. The exemption for these activities is also consistent with OSM regulations in 30 CFR Part 707. The proposed regulation contains criteria and standards for qualifying for the exemptions that are taken from the corresponding Federal regulation, 30 CFR Part 707, and, therefore, is no more stringent than the Federal law.
F. Benefits, Costs and Compliance
Executive Order 1996-1, ''Regulatory Review and Promulgation'' requires a cost/benefit analysis of the proposed regulation.
Benefits
Government entities located in this Commonwealth's coal fields that are proposing highway construction or reclamation projects will benefit from the addition of § 86.6. These entities will be able to avoid the additional cost and time involved in complying with the coal mining regulations to remove coal as part of the project. Furthermore, when a government-financed highway construction project or reclamation project will affect an area designated unsuitable for mining, as in the example described in section D of this Preamble, the designation will not automatically prohibit excavation or removal of coal or coal refuse. The Department and the Commonwealth may also benefit through additional reclamation of abandoned mine lands if government-financed reclamation contracts involving the necessary and incidental removal of coal and coal refuse can occur in areas designated unsuitable for mining.
Compliance Costs
The proposed regulation will impose no additional compliance costs on the coal mining industry, government entities or the public.
Compliance Assistance Plan
The Department will provide written notification of the proposed regulation to DOT, the Turnpike Commission and local governments.
Paperwork Requirements
The proposed regulation will not result in the need for additional forms, reports or other paperwork.
G. Sunset Review
The proposed rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), April 23, 2002, the Department submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed rulemaking to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of objections raised.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed regulation to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. The Board must receive comments, suggestions or objections by June 18, 2002 (within 45 days of publication in the Pennsylvania Bulletin). Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by June 18, 2002. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulation will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@state.pa.us and must also be received by the Board by June 18, 2002. A subject heading of the proposal and a return name and address must be included in each transmission.
DAVID E. HESS,
ChairpersonFiscal Note: 7-376. No fiscal impact; (8) recommends adoption.
Annex A
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 86. SURFACE AND UNDERGROUND COAL MINING: GENERAL
Subchapter A. GENERAL PROVISIONS § 86.6. Extraction of coal incidental to government-financed highway construction or reclamation projects.
(a) Extraction of coal incidental to government-financed highway construction or government-financed reclamation projects is exempt from the acts and this chapter as it relates to surface mining activities and operations, and Chapters 87 and 88 (relating to surface mining of coal; and anthracite coal) if:
(1) The extraction of coal is necessary to enable the construction or reclamation to be accomplished. Only that coal extracted from within the right-of-way, in the case of a road, or within the boundaries of the area directly affected by government-financed reclamation, may be considered incidental to that construction or reclamation.
(2) The construction or reclamation is funded by a Federal, Commonwealth, county, municipal or local unit of government, or a department, bureau, agency or office of the unit which, directly or through another unit of government, finances the construction or reclamation.
(3) The construction or reclamation is funded 50% or more by funds appropriated from the government unit's budget or obtained from general revenue bonds. Funding at less than 50% may qualify if the construction is undertaken as a Department-approved reclamation contract or project.
(b) Highway construction funded through government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent or in-kind payments does not qualify as government-financed construction.
(c) A person extracting coal incidental to government-financed highway construction or reclamation who extracts more than 250 tons of coal or affects more than 2 acres shall maintain on the site of the extraction operation and make available for inspection the following:
(1) A description of the construction or reclamation project.
(2) The exact location of the construction or reclamation, right-of-way or the boundaries of the area which will be directly affected by the construction or reclamation.
(3) The government agency that is providing the financing and the kind and amount of public financing, including the percentage of the entire construction costs represented by the government financing.
[Pa.B. Doc. No. 02-792. Filed for public inspection May 3, 2002, 9:00 a.m.]
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