Subchapter E. PRIME FARMLANDS
INFORMATION REQUIREMENTS Sec.
89.121. Prime farmland investigation.
89.122. Prime farmlands.
89.123. [Reserved].
89.124. [Reserved].
89.125. [Reserved].
89.126. [Reserved].
PERFORMANCE STANDARDS
89.131. Soil removal.
89.132. Soil stockpiling.
89.133. Soil replacement.
89.134. Revegetation.
Cross References This subchapter cited in 25 Pa. Code § 89.86 (relating to revegetation); 25 Pa. Code § 89.172 (relating to informational requirements); and 25 Pa. Code § 89.173 (relating to performance standards).
INFORMATION REQUIREMENTS
§ 89.121. Prime farmland investigation.
(a) The applicant shall contact the county office of the Natural Resources Conservation Service to determine whether lands within the area may be prime farmland.
(b) Land shall not be considered prime farmland when the applicant can demonstrate one or more of the following:
(1) The land has not been historically used as cropland;
(2) The slope of the land is 10% or greater;
(3) The land is not irrigated or naturally subirrigated;
(4) Other factors exist, such as a very rocky surface, or the land is flooded during the growing season more than once in 2 years and the flooding has reduced the crop yields;
(5) On the basis of a soil survey of the lands proposed to be affected by surface operations or facilities, there are no soil map units that have been designated prime farmland by the United States Natural Resources Conservation Service; or
(6) The area disturbed is minimal in size (less than 5 acres) and has been or will be in use for an extended period of time (more than 10 years).
(c) Lands containing soils which are not excluded under the criteria of subsection (b) shall be considered prime farmland.
(d) The applicant shall submit the results of the investigation along with certification by the Natural Resources Conservation Service that the conclusions are correct.
(e) If the investigation indicates that lands within the proposed area to be affected by surface operations and facilities are prime farmlands, the applicant shall submit a plan, in accordance with § 89.122(b) (relating to prime farmlands) for the designated land.
Authority The provisions of this § 89.121 amended under section 5 of The Clean Streams Law (35 P.S. § 691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § § 1396.4(a) and 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. § 30.53b); section 7(b) of The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. § 1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 89.121 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (207634) to (207635).
Cross References This section cited in 25 Pa. Code § 86.37 (relating to criteria for permit approval or denial); and 25 Pa. Code § 86.81 (relating to program services).
§ 89.122. Prime farmlands.
(a) This section applies to a person who conducts or intends to conduct underground mining activities on prime farmlands historically used for cropland except for the following:
(1) A permit issued prior to August 3, 1977.
(2) A renewal or revision of a permit issued prior to August 3, 1977. For the purposes of this paragraph, ‘‘renewal’’ of a permit means a decision by the Department to extend the time by which the permittee may complete mining within the boundaries of the original permit, and ‘‘revision’’ of the permit means a decision by the Department to allow changes in the method of mining operations within the original permit area, or a decision of the Department to allow incidental boundary changes to the original permit.
(b) A person who conducts or intends to conduct underground mining activities on prime farmlands historically used for cropland, except those persons exempted under subsection (a), shall submit a plan as part of the permit application for the mining and restoration of the land. A plan shall contain, at a minimum, the following:
(1) A soil survey of the permit area according to the standards of the National Cooperative Soil Survey and in accordance with the procedures in United States Department of Agriculture Handbooks 436 (Soil Taxonomy, 1975) and 18 (Soil Survey Manual, 1951). The soil survey shall include a map unit and representative soil profile description as determined by the United States Natural Resources Conservation Service for each prime farmland soil within the permit area unless other representative descriptions from the locality, prepared in conjunction with the National Cooperative Soil Survey, are available and their use is approved by the State Conservationist, United States Natural Resources Conservation Service. The soil profile description shall include, but not be limited to, soil horizon depths, pH and range of soil densities for each prime farmland soil unit within the proposed permit area. The Department may require the applicant to provide information on other physical and chemical soil properties as needed to make a determination that the operator has the technological capability to restore the prime farmland within the permit area to the soil reconstruction standards of § § 89.131—89.133 (relating to soil removal; soil stockpiling; and soil replacement).
(2) The proposed method and type of equipment to be used for removal, storage and replacement of the soil in accordance with § § 89.131—89.133.
(3) The proposed measures to be taken during soil reconstruction to prevent excessive compaction and achieve soil bulk densities which will result in the restored area returned to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management.
(4) The location of areas to be used for the separate stockpiling of the soil and plans for soil stabilization before redistribution.
(5) Documentation, if applicable, such as agricultural school studies or other scientific data from comparable areas, that supports the use of other suitable material, instead of A, B or C soil horizon, to obtain on the restored area equivalent or higher levels of yield as nonmined prime farmlands in the surrounding area under equivalent levels of management.
(6) Plans for seeding or cropping the final graded disturbed land, and the conservation practices to be used to adequately control erosion and sedimentation and restoration of an adequate soil moisture regime during the period from completion of regrading until release of the performance bond or equivalent guarantee under Chapter 86 Subchapter F (relating to bonding and insurance requirements). Proper adjustments for seasons must be proposed so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions.
(7) Available agricultural school studies or other scientific data for areas with comparable soils, climate and management—including water management—that demonstrate that the proposed method of reclamation will achieve, within a reasonable time, equivalent or higher levels of yield after mining as existed before mining.
(8) Standards for determining success of revegetation on prime farmland soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service. The current estimated yields under equivalent levels of management for each soil map unit and for each crop shall be used by the Department as the predetermined target level for determining success of revegetation. The target yields may be adjusted by the Department in consultation with the Secretary of Agriculture before approval of the permit application.
(c) Before a permit is issued for areas that include prime farmlands, the Department will consult the Natural Resources Conservation Service. The Natural Resources Conservation Service shall have the opportunity for review and comment of the proposed method of soil reconstruction in the plan submitted under subsection (b).
(d) When the underground mining activities are being conducted on prime farmland, a permit for the mining and reclamation operation may be granted by the Department, if it first finds, in writing, that:
(1) The approved postmining land use of these prime farmlands will be cropland.
(2) The applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in surrounding areas under equivalent levels of management.
(3) The proposed operations will be conducted in compliance with the requirements of § § 89.131—89.134 (relating to performance standards).
(4) The permit incorporates as specific conditions the contents of the plan submitted under subsection (b), after consideration of any revisions to the plan suggested by the Natural Resources Conservation Service under subsection (c).
(e) Soil productivity for prime farmlands shall be returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices, as determined from the soil survey performed under subsection (b).
Authority The provisions of this § 89.122 amended under section 5 of The Clean Streams Law (35 P.S. § 691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § § 1396.4(a) and 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. § 30.53b); section 7(b) of The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. § 1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 89.122 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (207635) to (207636) and (239677).
Cross References This section cited in 25 Pa. Code § 89.121 (relating to prime farmland investigation); 25 Pa. Code § 89.133 (relating to soil replacement); and 25 Pa. Code § 89.134 (relating to revegetation).
§ 89.123. [Reserved].
Source The provisions of this § 89.123 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; reserved July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
§ 89.124. [Reserved].
Source The provisions of this § 89.124 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; reserved July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
§ 89.125. [Reserved].
Source The provisions of this § 89.125 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; reserved July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
§ 89.126. [Reserved].
Source The provisions of this § 89.126 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; reserved July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
PERFORMANCE STANDARDS
§ 89.131. Soil removal.
(a) Soil materials to be used in the reconstruction of the prime farmland soil shall be removed before drilling, blasting or mining, in accordance with this section and in a manner that prevents mixing or contaminating these materials with undesirable material. Soil materials shall be removed in a manner that erosion is controlled and does not result in air and water pollution.
(b) The entire A horizon shall be separately removed from other soil and overburden materials.
(c) The B horizon, a combination of the B horizon and the underlying C horizon, or other suitable soil material that will create a reconstructed soil of equal or greater productive capacity than that which existed before mining, shall be separately removed from other topsoil and overburden materials.
(d) The underlying C horizons, other strata, or a combination of horizons or other strata, to be used instead of the B horizon, shall be separately removed from other topsoil and overburden materials. When replaced, these combinations shall be equal to or more favorable for plant growth than the B horizon.
(e) The minimum depth of soil and soil material to be removed for use in reconstruction of prime farmland soils shall be sufficient to meet the soil replacement requirements of § 89.133(a) (relating to soil replacement).
Source The provisions of this § 89.131 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
Cross References This section cited in 25 Pa. Code § 89.122 (relating to prime farmlands); 25 Pa. Code § 89.132 (relating to soil stockpiling); and 25 Pa. Code § 89.133 (relating to soil replacement).
§ 89.132. Soil stockpiling.
If not utilized immediately, the A horizon specified in § 89.131(b) (relating to soil removal) and the B horizon or other suitable soil materials specified in § 89.131(c) and (d) shall be stored separately from each other and from spoil. These stockpiles shall be placed within the permit area where they are not disturbed or exposed to excessive water or wind erosion before the stockpiled horizons can be redistributed. Stockpiles in place for more than 30 days shall meet the requirements of § 89.22(e) (relating to topsoil removal and storage).
Source The provisions of this § 89.132 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
Cross References This section cited in 25 Pa. Code § 89.122 (relating to prime farmlands).
§ 89.133. Soil replacement.
(a) The minimum depth of soil and soil material to be reconstructed for prime farmland shall be 48 inches, or a depth equal to the depth of a subsurface horizon in the natural soil that inhibits root penetration, whichever is shallower. The Department shall specify a depth greater than 48 inches whenever necessary to restore productive capacity due to uniquely favorable soil horizons at greater depths. Soil horizons shall be considered as inhibiting root penetration if their densities, chemical properties or water-supplying capacities restrict or prevent penetration by roots of plants common to the vicinity of the permit area and have little or no beneficial effect on soil productive capacity.
(b) Soil material shall be replaced only on land which has been first returned to final grade and scarified unless site-specific evidence is provided to and approved by the Department showing that scarification will not enhance the capability of the reconstructed soil to achieve equivalent or higher levels of yield.
(c) The soil horizons or other suitable soil material shall be replaced in a manner that avoids excessive compaction and creates a reconstructed soil of equal or greater productive capacity than that which existed before mining.
(d) The B horizon or other suitable material specified in § 89.131(c) and (d) (relating to soil removal) shall be replaced to the thickness needed to meet the requirements of subsection (a).
(e) The A horizon specified in § 89.131(b) shall be replaced as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original soil, as determined by § 89.122(b) (relating to prime farmlands) and be replaced in a manner that protects the surface layer from wind and water erosion before it is seeded or planted.
(f) Nutrients and soil amendments shall be applied as needed to quickly establish vegetative growth.
Source The provisions of this § 89.133 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
Cross References This section cited in 25 Pa. Code § 89.122 (relating to prime farmlands); and 25 Pa. Code § 89.131 (relating to soil removal).
§ 89.134. Revegetation.
(a) A vegetative cover capable of stabilizing the soil surface with respect to erosion shall be established following soil replacement. All vegetation shall be in compliance with the plan approved by the Department under § 89.122 (relating to prime farmlands) and carried out in a manner that encourages prompt vegetative cover and recovery of productive capacity. The timing and mulching provisions of § 89.86(c) and (d) (relating to revegetation) shall be met.
(b) Within a time period specified in the permit, but not to exceed 10 years after completion of backfilling and rough grading, any portion of the permit area which is prime farmland shall be restored to a condition capable of equivalent or higher levels of yield as nonmined prime farmland in surrounding areas under equivalent levels of management. When used for cropland, crops may be grown in rotation with hay or pasture crops as defined for cropland. The Department may approve a crop use of perennial plants for hay, when this is a common long term use of prime farmland soils in the surrounding area. The level of management shall be equivalent to that on which the target yields are based.
(c) Standards for determining success of restoration on prime farmlands soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service.
(1) If crops are grown, standards for determining success of restoration shall be used on crop yields. The current estimated yields under equivalent levels of management for each soil map unit and for each crop shall be used by the Department as the predetermined target level for determining success of revegetation. The target yields may be adjusted by the Department in consultation with the Secretary of the Department of Agriculture before approval of the permit application. The crop productivity or yield of the mined area shall be compared to the predetermined target level. As a minimum, the following standards shall be met:
(i) Average annual crop production shall be determined based upon a minimum of three years data. Crop production shall be measured for the 3 years immediately prior to release of bonding according to Chapter 86 Subchapter F (relating to bonding and insurance requirements).
(ii) Adjustment for weather-induced variability in the annual crop production may be permitted by the Department.
(iii) Restoration on prime farmland shall be considered a success when the adjusted 3-year average annual crop production is equivalent to, or higher than, the predetermined target level of crop production.
(2) If crops are not grown, standards for determining success of restoration shall be based on a soil survey, in addition to meeting the standards of § 87.155(b) (relating to revegetation: standards for successful revegetation). The permittee shall demonstrate to the Department that the prime farmland soil has been restored to a capability of equivalent or higher levels of yield as nonmined prime farmland of the same soil type in the surrounding area. The demonstration shall consider erodability, moisture-holding capacity, permeability, depth, texture, pH and any other factors deemed relevant by the Department for determining quality of the restored soils as prime farmland.
(d) In all cases, soil productivity for prime farmlands shall be returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed under § 89.122.
Authority The provisions of this § 89.134 amended under section 5 of The Clean Streams Law (35 P.S. § 691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § § 1396.4(a) and 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. § 30.53b); section 7(b) of The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. § 1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 89.134 adopted July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (207640) and (315409).
Cross References This section cited in 25 Pa. Code § 89.122 (relating to prime farmlands).
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