PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CH. 86]
Small Operator Assistance Program
[27 Pa.B. 1446] The Environmental Quality Board (Board) proposes to amend Chapter 86, Subchapter C (relating to small operator assistance program). The amendments are the result of the Department of Environmental Protection's (Department) Regulatory Basics Initiative to revise its regulations to provide clarity and eliminate redundant language. The amendment will also correct regulatory citations used in cross references which the Federal Office of Surface Mining Reclamation and Enforcement (OSMRE) has indicated are beyond the scope of services authorized by the Small Operator Assistance Program (SOAP).
This proposal was adopted by the Board at its meeting of January 21, 1997.
A. Effective Date.
These proposed amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact David C. Hogeman, Chief, Division of Environmental Analysis and Support, Bureau of Mining and Reclamation, P. O. Box 8461, Room 213 Executive House, Harrisburg, PA 17105-8461, (717) 787-4761, 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. Information regarding submitting comments on this proposal appears in Section I of this Preamble. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department's Web site (http://www.dep.state.pa.us).
C. Statutory Authority
These amendments are promulgated under the authority of sections 4.2, 4.3 and 18.7 of the Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.4b, 1396.4c and 1396.18g) which provide for the creation of the Small Operator Assistance Fund and generally set forth the rulemaking authority of the Department to regulate coal mining; section 5 of The Clean Streams Law (35 P. S. § 691.5) which sets forth the rulemaking authority of the Department in order to implement The Clean Streams Law and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20) which sets forth the rulemaking authority of the Board to adopt regulations in order for the Department to carry out its responsibilities.
D. Background and Purpose
Sections 86.81--86.95 are being restructured and changed to provide better clarity, eliminate redundant language and correct regulatory citations used in cross references which the Federal OSMRE has indicated are beyond the scope of services authorized by SOAP. Four sections of the existing regulations have been eliminated through this restructuring. No substantial changes to the content of these regulations have been made.
Under the Regulatory Basics Initiative, the Department solicited public input through a notice in the Pennsylvania Bulletin and the Department's Web site (http://www.dep.state.pa.us). The amendments being proposed at this time are the result of suggestions from the public and the Department's own review of its regulations.
The proposed amendments were discussed with the Mining and Reclamation Advisory Board (MRAB) at its meeting on October 3, 1996. The MRAB recommended that these regulations be approved for proposed rulemaking.
E. Summary of Amendments
Sections 86.81 and 86.83 (relating to program services; and eligibility for assistance) are being changed to delete references to regulatory requirements which OSMRE had found to be beyond the scope of the services authorized by the Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) (30 U.S.C.A. § 507) and in Federal regulations in 30 CFR 795 (See 60 FR 63 (April 3, 1995)). The proposed changes make these regulations consistent with Federal requirements.
Numerous nonsubstantive changes are being made throughout these regulations which restructure and reorganize the regulatory requirements under appropriate subject headings.
Section 86.81 is proposed to be changed to add portions of regulations from §§ 86.82 and 86.94 (relating to responsibilities; and applicant liability).
Section 86.82 is proposed to be changed to add portions of the regulations from § 86.91 (relating to definitions and responsibilities). Section 86.91 is proposed to be deleted.
Section 86.83 (relating to eligibility for assistance) is proposed to be changed to add the regulatory language from § 86.95 (relating to measurement). Section 86.95 is proposed to be deleted.
Section 86.84 (relating to application for assistance) is proposed to be changed to delete outdated program language and to clarify organizational structure.
Section 86.85 (relating to application approval) is proposed to be changed to delete redundant language and to add regulatory language from §§ 86.86 and 86.87 (relating to notice; and determination of data requirements). Sections 86.86 and 86.87 are proposed to be deleted.
Section 86.94 is proposed to be changed to clarify that an operator who received assistance is liable for reimbursement of costs if the operator fails to begin mining within 3 years after obtaining a permit. Changes to this section also include deletion of language which has been moved to other sections.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of these proposed amendments.
Benefits
The benefits contained in these proposed amendments are primarily to provide clarity and consistency with Federal language for any person having reason to reference the SOAP regulations. Some minor procedural and administrative changes are also being made.
Compliance Costs
The proposed changes will impose no additional compliance costs on the regulated community.
Compliance Assistance Plan
Since SOAP is an estblished program in this Commonwealth, and no substantive changes are proposed, compliance assistance will be limited to a simple effort to inform the industry of the specific changes in the Program. This can be accomplished by mailing fact sheets directly to coal mine operators. If necessary, the proposal will be discussed with the industry at roundtable meetings.
Paperwork Requirements
The proposed amendments will impose no additional paperwork on the regulated community.
G. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the proposed amendments on March 10, 1997, 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 amendments, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department. A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed amendments, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review by the Department, the Governor and the General Assembly before final publication of the regulations.
I. Public Comments
Written Comments--Interested persons are invited to submit written comments, suggestions or objections regarding the proposed amendments 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 received by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by April 21, 1997 (within 30 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 April 21, 1997 (within 30 days of publication in the Pennsylvania Bulletin). 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 regulations will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@A1.dep.state.pa.us and must also be received by the Board by April 21, 1997. A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
JAMES M. SEIF,
ChairpersonFiscal Note: 7-308. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 86. SURFACE AND UNDERGROUND
COAL MINING: GENERAL
Subchapter C. SMALL OPERATOR ASSISTANCE PROGRAM § 86.81. Program services.
(a) To the extent that funds are available in the Small Operators' Assistance Fund, the Department will [for qualified small operators who request assistance]:
(1) Review requests for assistance.
[(1)] (2) * * *
* * * * * (iii) Provide a description of the existing resources within and adjacent to the proposed permit area in accordance with [either §§ 87.41--87.50, 87.52--87.54, 88.21--88.33 or §§ 89.33--89.38, 89.71--89.74, 89.102, 89.121, 89.122, 89.141, 89.142(a).] one of the following:
(A) Sections 87.41--87.47, 87.50 and 87.54.
(B) Sections 88.21--88.27 and 88.31.
(C) Sections 89.33--89.36, 89.38 and 89.74.
(iv) Provide a detailed description, to include maps, plans and cross sections, of the proposed coal mining activities showing the manner in which the proposed permit area will be mined and reclaimed in accordance with [the requirements of either §§ 87.68--87.84, §§ 88.41--88.44, § 88.46, §§ 88.48--88.62 or § 89.31, § 89.32, §§ 89.36--89.38, §§ 89.71--§ 89.74, § 89.102, § 89.122(b), § 89.141, § 89.142(a).] one of the following:
(A) Sections 87.69, 87.77 and 87.84 (relating to protection of hydrologic balance; protection of public parks and historic places; and, fish and wildlife protection and enhancement plan).
(B) Sections 88.49, 88.56 and 88.62 (relating to protection of hydrologic balance; protection of public parks and historic places; and fish and wildlife protection and enhancement plan).
(C) Sections 89.33--89.36, 89.38 and 89.74.
* * * * * [(2)] (3) * * *
(b) If funds allocated by the Department for the payment of services provided to the applicant are less than those required to pay for the services, the applicant is responsible for costs exceeding the amount of funds allocated for the services provided to the applicant.
§ 86.82. Responsibilities.
(a) The Department will:
(1) [Review requests for assistance and determine qualified operators.
(2)] Develop and maintain a list of qualified consultants and qualified laboratories, and select and pay consultants for services rendered.
(i) As used in this subchapter, ''qualified consultant'' and ''qualified laboratory'' mean a designated public agency, private consulting firm, institution or analytical laboratory which can provide the required services under this Program.
(ii) Persons who desire to be included in the list of qualified consultants or qualified laboratories established by the Department shall apply to the Department and provide the information necessary to establish the qualifications required by § 86.92 (relating to basic qualifications).
[(3)] (2) * * *
[(4)] (3) * * *
[(5)] (4) * * *
* * * * * § 86.83. Eligibility for assistance.
(a) An applicant is eligible for assistance if the applicant:
* * * * * (2) Establishes that the probable total [and] attributed annual production from [the applicant's operations during the 12-month period immediately following the date] all locations on which the applicant is issued the mining activities permit will not exceed 300,000 tons.
* * * * * (c) For the purpose of this subchapter, measurement of coal production will be based on the production reported to the office of surface mining reclamation and enforcement for the purpose of the reclamation fee payment.
§ 86.84. Applications for assistance.
(a) [Persons wishing to receive assistance shall file a Small Operator Assistance Program application with the Department at any time after initiation of the program.]
[(b) The] An application for assistance shall contain the following information:
* * * * * (2) The names and addresses of:
* * * * * [(iii) The surface mining operator's license number, if applicable.]
* * * * * (7) The mine operator's license number.
[(c)] (b) [Two copies of the] The application shall be [submitted, one of which shall be] attested by a notary public or district justice.
§ 86.85. Application approval and notice.
(a) If the Department finds the applicant eligible for assistance and does not have information readily available which would preclude issuance of a permit to the applicant for mining in the area proposed, it will[:
(1) Determine the minimum data requirements necessary to meet the provisions of § 86.81 (relating to program services).
(2) Select the service of one or more qualified consultants to perform the required work.]
determine the minimum data collection requirements to meet the objectives of the Program for each applicant or group of applicants.
(b) The development of information on environmental resources, operation plans and reclamation plans may proceed concurrently with data collection and analyses required for the determination of the probable hydrologic consequences of the proposed mining activities if specifically authorized by the Department in an approved work order.
(c) The data requirements will be based on:
(1) The extent of currently available hydrologic and core analysis data for the applicable area provided by the Department.
(2) The data collection and analysis guidelines developed by the Department.
(d) The Department will provide the applicant a copy of the contract or other appropriate work order for the qualified consultants' services and the final application approval report.
(e) The Department will inform the applicant in writing if the application is denied and will state the reason for denial.
[(b)] (f) The granting of assistance under this [program may not be a factor in decisions by] Program does not imply that the Department [on] will approve a subsequent permit application.
§ 86.86. [Notice] (Reserved).
[(a) The Department will provide the applicant a copy of the contract or other appropriate work order for the consultants' services and the final application approval report.
(b) The Department will inform the applicant in writing if the application is denied and will state the reason for denial.]
§ 86.87. [Determination of data requirements] (Reserved).
[(a) The Department will determine the data collection requirements to meet the objectives of the program for each applicant or group of applicants. If specifically authorized by the Department in an approved work order, the development of information on environmental resources, operation plans and reclamation plans may proceed concurrently with data collection and analyses required for the determination of the probable hydrologic consequences of the proposed mining activities.
(b) The data requirements will be based on:
(1) The extent of currently available hydrologic and core analysis data for the applicable area provided by the Department.
(2) The data collection and analysis guidelines developed and provided by the Department.]
§ 86.91. [Definitions and responsibilities] (Reserved).
[(a) As used in this subchapter, ''qualified consultant'' and ''qualified laboratory'' mean a designated public agency, private consulting firm, institution or analytical laboratory which can provide the required services under this program.
(b) Persons who desire to be included in the list of qualified consultants or qualified laboratories established by the Department shall apply to the Department and provide the information necessary to establish the qualifications required by § 86.92 (relating to basic qualifications).
(c) The Department will designate and maintain a list of qualified consultants and qualified laboratories who demonstrate that they meet the qualifications of § 86.92.]
§ 86.94. Applicant liability.
(a) The applicant shall reimburse the Department for the cost of the consultant and laboratory services performed under this subchapter, including interest from the date the Department requests reimbursement, if the applicant does one of the following:
* * * * * (3) Fails to [mine] commence mining within 3 years after obtaining a permit.
* * * * * (c) [If funds allocated for the services are less than those required to pay for the services, the applicant is responsible for costs exceeding the amount of funds allocated for the services provided to the applicant.
(d)] The Department may waive the reimbursement liability requirements of subsection (a)(2) or (3) if the applicant has demonstrated a good faith effort to comply with these provisions. For the purpose of this determination, ''good faith'' means that the applicant has promptly notified the Department of the conditions and circumstances which have precluded the completion of the Small Operator Assistance Program Project, the submission of a mine permit application or the initiation of mining within the prescribed time period and the circumstances which preclude compliance with the liability requirements include one of the following:
* * * * * § 86.95. [Measurement] (Reserved).
[For the purpose of this program, measurement of coal production will be based on the production reported to the Office of Surface Mining Reclama-tion and Enforcement for the purpose of the reclamation fee payment.]
[Pa.B. Doc. No. 97-441. Filed for public inspection March 21, 1997, 9:00 a.m.]
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