§ 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 area covered by the operator’s bond and upon which the operator proposes to conduct surface mining activities within the boundary of the proposed surface or coal mining activities permit 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. For the purpose of this section, the term ‘‘violation’’ includes the types of violations listed in the definition of ‘‘violation’’ in 30 CFR 701.5 (relating to definitions). 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).
Authority The provisions of this § 86.37 amended under section 4.2 the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); the Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.1—1406.21); The Clean Streams Law (35 P. S. § § 691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Source The provisions of this § 86.37 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 January 4, 1985, effective upon the granting of primary jurisdiction to the Commonwealth of Pennsylvania by the Secretary of the United States Department of Interior, 15 Pa.B. 13; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227; amended May 31, 2002, effective June 1, 2002, 32 Pa.B. 2686; amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084. Immediately preceding text appears at serial pages (313491) to (313492), (288885) to (288886) and (313493).
Notes of Decisions Written Findings
Although the language used in the written findings does not mirror that contained in § 86.37(a)(3) (relating to criteria for permit approval or denial), the record indicates that the Department utilized the appropriate standards. It was therefore not error for the Environmental Hearing Board to determine that the Department correctly concluded that there was no presumptive evidence of potential pollution to the waters of this Commonwealth. People United To Save Homes v. Department of Environmental Protection, 789 A.2d 319 (Pa. Cmwlth. 2001).
Cross References This section cited in 25 Pa. Code § 86.43 (relating to improvidently issued permits); 25 Pa. Code § 86.129 (relating to coal exploration on areas designated as unsuitable for surface mining operations); 25 Pa. Code § 86.162b (relating to Land Reclamation Financial Guarantees); 25 Pa. Code § 86.189 (relating to reclamation of bond forfeiture sites); 25 Pa. Code § 86.253 (relating to operator and project qualifications); 25 Pa. Code § 87.108 (relating to hydrologic balance: sedimentation ponds); 25 Pa. Code § 87.203 (relating to applicability); 25 Pa. Code § 87.205 (relating to approval or denial); 25 Pa. Code § 88.503 (relating to applicability); and 25 Pa. Code § 88.505 (relating to approval or denial); 25 Pa. Code § 90.303 (relating to applicability); and 25 Pa. Code § 90.305 (relating to application approval or denial).
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