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PA Bulletin, Doc. No. 98-9




[25 PA. CODE CH. 86]

Small Operator Assistance Program (SOAP)

[28 Pa.B. 15]

   The Environmental Quality Board (Board) by this order amends Chapter 86, Subchapter C (relating to the Small Operator Assistance Program). The amendments clarify and eliminate redundant language and 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).

   The amendments were adopted by the Board at its meeting of October 21, 1997.

A.  Effective Date

   These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.

B.  Contact Persons

   For further information, contact David C. Hogeman, Chief, Division of Environmental Analysis and Support, Bureau of Mining and Reclamation, Room 213 Executive House, P. O. Box 8461, Harrisburg, PA 17105-8461, (717) 787-4761, or Joseph Pizarchik, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, 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 rulemaking is available electronically through the Department of Environmental Protection's (Department) Website (

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 Operators' 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 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 for the Department to carry out its responsibilities.

D.  Background and Purpose

   In 1995, the Department began a review of its existing regulations under Secretary Seif's Regulatory Basics Initiative. In 1996, Governor Ridge issued Executive Order 1996-1 which directed executive agencies to undertake a review of existing regulations. This rulemaking package was prepared following the review required under the Regulatory Basics Initiative and Executive Order 1996-1 and it is consistent with the regulatory directives contained within these initiatives.

   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. Three 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 Website. The amendments being adopted at this time are the result of suggestions from the public and the Department's own review of its regulations.

   The amendments were discussed with the Mining and Reclamation Advisory Board (MRAB) at its meeting on October 3, 1996. The MRAB recommended that these amendments be approved for final rulemaking.

E.  Summary of Comments and Responses on Proposed Rulemaking

   No public comments were received concerning these amendments. The Independent Regulatory Review Commission (IRRC) provided several suggestions to improve the clarity and organization of the regulatory language. Specifically, IRRC suggested that a definition section be added to the regulations in Subchapter C to define the terms ''qualified consultant'' and ''qualified laboratory''; that § 86.87 (relating to data requirements) be retained in the regulations; and that time frames be added to § 86.85(d) and (e) (relating to application approval and notice) to provide clarity concerning notification of Department actions. IRRC also noted that the proposed changes to § 86.82 (relating to responsibilities), inappropriately mixed duties and responsibilities of prospective consultants and laboratories with those of the Department.

   In response to these comments the final-form regulations have been changed to incorporate the suggestions of IRRC.

F.  Benefits, Costs and Compliance

   Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.


   The benefits contained in these amendments are primarily to provide clarity and consistency with Federal language for any person having reason to refer to the regulations. Some minor procedural and administrative changes are also being made.

   Compliance Costs

   The changes will impose no additional compliance costs on the regulated community.

   Compliance Assistance Plan

   Since SOAP is an established program in this Commonwealth, and no substantive changes have been made, compliance assistance will be limited to a simple effort to inform the industry of the specific changes in the program.

   Paperwork Requirements

   The amendments will impose no additional paperwork on the regulated community.

   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 final-form 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 March 10, 1997, the Board submitted a copy of proposed rulemaking, published at 27 Pa.B. 1446 (March 22, 1997) and the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments received as well as other documentation.

   In preparing these final-form regulations, the Board has considered the comments received from IRRC.

   These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committees on November 25, 1997. IRRC met on December 11, 1997, and deemed approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.

I.  Findings

   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. 1447 (March 22, 1997).

   (4)  These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.

J.  Order

   The Board, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Department, 25 Pa. Code Chapter 86, are amended by amending §§ 86.81, 86.83 and 86.94 and deleting §§ 86.86, 86.87, 86.91 and 86.95 to read as set forth at 27 Pa.B. 1447 and by adding § 86.80 and amending §§ 86.82, 86.84, 86.85, 86.87 and 86.92 to read as set forth in Annex A.

   (b)  The Chairperson of the Board shall submit this order, 27 Pa.B. 1447 and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form, as required by law.

   (c)  The Chairperson shall submit this order, 27 Pa.B. 1447 and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.

   (d)  The Chairperson of the Board shall certify this order, 27 Pa.B. 1447 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.


   (Editor's Note: The proposal to add § 86.80 and to amend § 86.92 was not included in the proposed rulemaking at 27 Pa.B. 1447.)

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6878 (December 27, 1997).)

   Fiscal Note: Fiscal Note 7-308 remains valid for the final adoption of the subject regulations.

Annex A







§ 86.80.  Definitions.

   The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Qualified consultant and qualified laboratory--A designated public agency, private consulting firm, institution or analytical laboratory which can provide the required services under this program in accordance with § 86.92 (relating to basic qualifications).

§ 86.82.  Responsibilities.

   (a)  The Department will:

   (1)  Develop and maintain a list of qualified consultants and qualified laboratories, and select and pay consultants for services rendered.

   (2)  Conduct periodic onsite evaluations of the program activities with the appropriate small operator.

   (3)  Participate with the Office of Surface Mining Reclamation and Enforcement in data coordination activities with the United States Geological Survey, the EPA and other appropriate agencies or institutions.

   (4)  Participate with the Office of Surface Mining Reclamation and Enforcement in auditing the applicant's statement of eligibility.

   (b)  The Department and the Office of Surface Mining Reclamation and Enforcement will insure that applicable equal opportunity in employment provisions are included within contracts or other procurement documents.

§ 86.84.  Applications for assistance.

   (a)  An application for assistance shall contain the following information:

   (1)  A statement of intent to file a permit application under this chapter.

   (2)  The names and addresses of:

   (i)  The intended permit applicant.

   (ii)  The intended operator, if different from the applicant.

   (3)  A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant under this section. For each location, the schedule shall include:

   (i)  The name under which coal is or will be mined.

   (ii)  The permit number and Mining Enforcement and Safety Administration identification number, if available.

   (iii)  The actual coal production for the year preceding the application for assistance and that portion of the production attributed to the applicant.

   (iv)  The estimated coal production for each year of the proposed permit and that portion attributed to the applicant.

   (4)  A description of:

   (i)  The method of coal mining activities proposed.

   (ii)  The anticipated starting and termination dates of mining operations.

   (iii)  The number of acres of land to be affected by the proposed mining.

   (iv)  A general statement on the probable depth and thickness of the coal resource.

   (5)  A United States Geological Survey topographic map of 1:24,000 scale or larger which clearly shows:

   (i)  The area of land to be affected and the natural drainage above and below the affected area.

   (ii)  The names of property owners within the area to be affected and of adjacent lands.

   (iii)  The location of existing structures and developed water sources within the area to be affected and of adjacent lands.

   (iv)  The location of existing and proposed test boring or core samples and the location and extent of known working of any underground mines.

   (6)  Copies of documents which show that the legal right of entry necessary to meet the provisions of § 86.64 (relating to right of entry) have been obtained by the applicant.

   (7)  The mine operator's license number.

   (b)  The application 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 services of one or more qualified consultants to perform the required work.

   (3)  Provide the applicant a copy of the contract or other appropriate work order for the qualified consultants' services and the consultants' report within 15 days of the Department's final approval.

   (b)  The granting of assistance under this program does not imply that the Department will approve a subsequent permit application.

   (c)  Within 45 days of receipt of a complete application for assistance, 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.

   (a)  The Department will determine the data collection requirements to meet the objectives of the program for each applicant or group of applicants. 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.

   (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.

§ 86.92.  Basic qualifications.

   (a)  To be designated as a qualified consultant or qualified laboratory, the consultant or laboratory shall demonstrate that it:

   (1)  Is staffed with experienced, professional personnel in the fields of hydrology, mining engineering, aquatic biology, geology or chemistry applicable to the work to be performed as a water laboratory, overburden laboratory or consulting firm.

   (2)  Is capable of collecting necessary field data and samples.

   (3)  Has adequate space for material preparation, cleaning and sterilizing necessary equipment, stationary equipment, storage and space to accommodate periods of peak work loads.

   (4)  Meets the requirements of the Occupational Safety and Health Act of 1970, the act of December 29, 1970 (Pub.L. No. 91-596) (84 Stat. 1590).

   (5)  Has the financial capability and business organization necessary to perform the work required.

   (6)  Has analytical, monitoring and measuring equipment capable of meeting the applicable standards and methods contained in:

   (i)  The current edition of Standard Methods of the Examination of Water and Waste Water.

   (ii)  Methods of Chemical Analysis of Water and Wastes, as amended. The standards contained therein are incorporated by reference. Available from ORD Publications, CERTI, EPA, Cincinatti, Ohio 45278 March 1983 (EPA-600/4-79-020).

   (iii)  The EPA standards as described in 40 CFR Part 136 (relating to guidelines establishing test procedures for the analysis of pollutants).

   (iv)  The Department's Overburden Sampling and Testing Manual.

   (7)  Has the capability of making hydrologic field measurements and analytical laboratory determinations by acceptable hydrologic engineering or analytical methods or by appropriate methods or guidelines for data acquisition recommended by the Department.

   (b)  The qualified consultant shall be capable of performing the services under § 86.81 (relating to program services). Subcontractors may be used to provide the s ervices required if the use is defined in the application for designation and approved by the Department.

   (c)  Persons who desire to be included in the list of qualified consultants or qualified laboratories established by the Department under § 86.82 (relating to responsibilities) shall apply to the Department and provide the information necessary to establish the qualifications required by this section.

[Pa.B. Doc. No. 98-9. Filed for public inspection January 2, 1998, 9:00 a.m.]

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