Subchapter A. GENERAL PROVISIONS
Sec.
86.1. Definitions.
86.2. Scope.
86.3. Use of Coal Refuse Disposal Control Fund.
86.5. Extraction of coal incidental to noncoal surface mining.
86.6. Extraction of coal incidental to government-financed construction or government-financed reclamation projects.§ 86.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
ABS Legacy Sites—Mine sites, permitted under the Primacy Alternate Bonding System, that have a postmining pollutional discharge where the operator has defaulted on its obligation to adequately treat the discharge and, either the bond posted for the site is insufficient to cover the cost of treating the discharge, or a trust to cover the costs of treating the discharge was not fully funded and is insufficient to cover the cost of treating the discharge.
Acts—Include the following:(i) The Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19b).
(ii) The Air Pollution Control Act (35 P. S. § § 4001—4015).
(iii) The Clean Streams Law (35 P. S. § § 691.1—691.1001).
(iv) The Coal Refuse Disposal Control Act (52 P. S. § § 30.51—30.66).
(v) Article XIX-A of The Administrative Code of 1929 (71 P. S. § § 510-1—510-108).
(vi) The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.1—1406.21).
(vii) The Dam Safety and Encroachments Act (32 P. S. § § 693.1—693.27).
(viii) The Solid Waste Management Act (35 P. S. § § 6018.101—6018.1003).
(ix) The Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. § § 3301—3326).
Applicant—A person who seeks to obtain a permit from the Department to conduct coal mining activities under this chapter.
Application—The documents and other information filed with the Department for the issuance of a permit.
Bond—A bond by which a permittee assures faithful performance of the requirements of the acts, this chapter, Chapters 87—90 and the requirements of the permit and reclamation plan.
Coal mining activity—Surface mining activities, underground mining activities, coal preparation activities or coal refuse disposal activities as these terms are defined in this section.
Coal preparation activity—An operation in which coal is subject to chemical or physical processing or cleaning, concentrating or other processing or preparation. The term includes a facility associated with the coal preparation activity and the activity by which the land surface has been or is disturbed as a result of or incidental to coal preparation activity of the operator, including, but not limited to, the following:(i) Private ways and roads appurtenant to the area, land excavations and loading facilities.
(ii) Storage and stockpile facilities.
(iii) Sheds, shops and other buildings.
(iv) Water treatment and water storage facilities.
(v) Settling basins and impoundments.
(vi) Areas in which are situated facilities, equipment, machines, tools or other materials or property which result from or are used in the coal preparation activity.
Coal refuse disposal activities—Activities whereby a plot of land is used as a place for disposing, dumping or storage of coal refuse. These areas may include land thereby affected, including, but not limited to, a deposit of coal refuse on or buried in the earth and intended as permanent disposal of or long-term storage of the material, but not including coal refuse deposited within an active mine itself or coal refuse never removed from a mine. The term includes activities in which the natural land surface has been disturbed as a result of or incidental to the coal refuse disposal activities of the operator, including, but not limited to, private ways and roads appurtenant to the area, land excavations, workings, tailings, repair areas, storage areas, processing areas, shipping areas and areas in which structures, facilities, equipment, machines, tools or other materials or property which result from or are used in coal refuse disposal activities are situated.
Complete application—An application for a permit which contains an application form properly completed, signed and witnessed, a filing fee, proof of publication, the standard reports or forms required by the Department to process a permit and which demonstrates compliance with applicable statutes and regulations.
Cumulative measurement period—For purposes of § 86.5 (relating to extraction of coal incidental to noncoal surface mining), the period of time over which both cumulative production and cumulative revenue are measured.
Cumulative production—For purposes of § 86.5, the total tonnage of coal or other minerals extracted from a mining area during the cumulative measurement period. The inclusion of stockpiled coal and other mineral tonnages in this total is governed by § 86.5(k).
Cumulative revenue—For purposes of § 86.5, the total revenue derived from the sale of coal or other minerals and the fair market value of coal or other minerals transferred or used, but not sold, during the cumulative measurement period.
Entity—A person including, but not limited to, a corporation, association, general and limited partnership, agency and instrumentality of Federal or State government, contractor, operator, permit holder and other forms of business organization.
Existing structure—A structure or facility used in connection with or to facilitate coal mining activities for which construction began prior to the effective date of this chapter.
General area—The topographic and groundwater basin, with respect to hydrology, surrounding a permit area which is of sufficient size, including areal extent and depth, to include one or more watersheds containing perennial streams and groundwater zones and to allow assessment of the probable cumulative impacts on the quality and quantity of surface water and groundwater systems in the basins.
Groundwater—Subsurface waters of the Commonwealth.
Historically used for cropland—Includes the following:(i) Lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease or option, of the land for the purpose of conducting or allowing through resale, lease or option the conduct of coal mining activities.
(ii) Lands that the Department determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved.
(iii) Lands that would likely have been used as cropland for any 5 out of the last 10 years immediately preceding the acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.
Historic resource—A building, structure, object, district, place, site or area significant in the history, architecture, maritime heritage, archaeology or culture of this Commonwealth, its communities or the Nation. The term includes the terms ‘‘cultural resource,’’ ‘‘archaeological resource,’’ ‘‘historic place,’’ ‘‘historic property,’’ ‘‘archaeological site’’ and ‘‘archaeological property’’ as used in this chapter and Chapters 87—90.
Interim permit—A permit issued by the Department prior to the effective date of this chapter and in accordance with the requirements of Chapter 13 (relating to compliance with the Surface Mining Control and Reclamation Act of 1977).
Landowner—The person or municipality in whom legal title to the land is vested.
Land use—A specific use or management-related activity, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur.
MSHA—The Mine Safety and Health Administration of the United States Department of Labor.
Major permit revision—A revision to a coal mining permit that requires public notice.
Mining area—For purposes of § 86.5, an individual excavation site or pit from which coal, other minerals and overburden are removed.
Municipality—A county, city, borough, town, township, school district, institution or an authority created by any one or more of the foregoing.
Occupied dwellings—A permanent building or fixed mobile home that is currently being used on a regular or temporary basis for human habitation.
Operational area—The maximum portion of the permitted area that the permittee is authorized to disturb at any specific time during the permit term in accordance with the approved mining and reclamation plan, including all of the land affected by mining activities that is not planted, growing and stabilized.
Operation and maintenance costs—Expenses associated with the day-to-day operation and maintenance of a conventional or a passive treatment facility, such as chemicals, electricity, labor, water sampling, sludge removal and disposal, maintenance of access roads, mowing, snow removal, inspecting facilities, repairing and maintaining all aspects of the treatment facility, equipment and buildings.
Operator—A person or municipality engaged in coal mining activities as a principal as distinguished from an agent or independent contractor. When more than one person is engaged in coal mining activities in a single operation, they shall be deemed jointly and severally responsible for compliance with the provisions of the Surface Mining Conservation and Reclamation Act, The Clean Streams Law, the Coal Refuse Disposal Control Act and The Bituminous Mine Subsidence and Land Conservation Act.
Other minerals—For purposes of § 86.5, a commercially valuable substance mined for its mineral value, excluding coal, topsoil, waste and fill material.
Owned or controlled and owns or controls—One or a combination of the relationships specified in subparagraphs (i)—(iv):(i) Being a permittee of a coal mining activity.
(ii) Based on instruments of ownership or voting securities, owning of record in excess of 50% of an entity.
(iii) The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant coal mining activity is conducted:
(A) Being an officer or director of an entity.
(B) Being the operator or contractor of a coal mining activity.
(C) Having the ability to commit the financial or real property assets or working resources of an entity.
(D) Being a general partner in a partnership.
(E) Based on the instruments of ownership or the voting securities of a corporate entity, owning of record a percentage of the entity as established in the definition of ‘‘own, owner, or ownership’’ in 30 CFR 701.5 (relating to definitions).
(F) Owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive the coal after mining or having authority to determine the manner in which that person or another person conducts a coal mining activity.
(iv) Having another relationship which gives one person authority directly or indirectly to determine the manner in which an applicant, an operator or other entity conducts coal mining activities.
Participates—To take part in an action or to instruct another person or entity to conduct or not to conduct an activity.
Passive treatment system—A mine drainage treatment system which does not require routine operational control or maintenance. The term includes biological or chemical treatment systems, alone or in combinations, as approved by the Department, such as artificially constructed wetlands, cascade aerators, anoxic drains or sedimentation basins.
Permit—A permit issued by the Department to conduct coal mining activities.
Permit application fee—A nonrefundable filing fee due at the time of submission of an application. The permit application fee is required for an application to be considered complete.
Permit area—Includes the following:(i) For surface mining activities and refuse disposal activities: the area of land and water within the boundaries of the permit, which area is designated on the permit application maps as approved by the Department. This area shall include areas which are or will be affected by the surface mining activities or refuse disposal activities.
(ii) For underground mining activities: the mine and areas where underground mining activities occur.
Permittee—A person holding, or required to hold by the acts, a permit issued by the Department to conduct coal mining activities.
Person—A natural person, partnership, association or corporation, or an agency, instrumentality or entity of Federal or State government. Whenever used in a clause prescribing and imposing a penalty, or imposing a fine or imprisonment, or both, the term ‘‘person’’ may not exclude the members of an association and the directors, officers or agents of a corporation.
Postmining pollutional discharge—A discharge of mine drainage emanating from or hydrologically connected to the permit area, which may remain after coal mining activities have been completed, and which does not comply with the applicable effluent requirements described in § 87.102, § 88.92, § 88.187, § 88.292, § 89.52 or § 90.102. The term includes minimal-impact postmining discharges, as defined in section 3 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.3).
Primacy Alternate Bonding System—The bonding system utilized by the Commonwealth from July 31, 1982, until August 4, 2001, for surface coal mines, coal refuse reprocessing facilities and coal preparation plants in which a central pool of money to be used by the Department for reclamation of forfeited sites was funded in part through imposition of a per-acre reclamation fee paid by operators of permitted sites.
Prime farmland—Land which is defined by the Secretary of Agriculture in 7 CFR Part 657 (relating to prime and unique farmlands) and which has been historically used for cropland.
Principal shareholder—A person who is the legal owner of 10% or more of any class of voting stock.
Property—Real or personal property.
Public road—A thoroughfare open to the public which has been or is being used by the public for vehicular travel.
Recapitalization costs—The costs associated with replacing discharge treatment facility components or the costs to install treatment systems with lower operation and maintenance costs than the system being replaced.
Related party—A partner, associate, officer, director, shareholder, parent corporation, subsidiary corporation, affiliate or persons under common control with the applicant, contractor or subcontractor. The term does not include persons who are excluded, based on a percentage of ownership, under the definition of ‘‘owned or controlled and owns or controls.’’
Surface mining activities—Any activities meeting the definition of ‘‘surface mining activities’’ as it is defined at 30 CFR 701.5, which is adopted in its entirety and incorporated herein by reference.
Underground mining activities—Includes the following:(i) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities, including hoist and ventilating ducts, area used for the disposal and storage of waste and areas on which materials incident to underground mining operations are placed.
(ii) Underground operations such as underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.
(iii) Operation of a mine, including preparatory work in connection with the opening and reopening of a mine, backfilling, sealing and other closing procedures, postclosure mine pool maintenance and any other work done on land or water in connection with a mine.
Valid existing rights—Rights which exist under the definition of ‘‘valid existing rights’’ in 30 CFR 761.5 (relating to definitions).
Violation notice—A written notification from a governmental entity of a violation of law, whether by letter, memorandum, legal or administrative pleading or other written communication.
Waters of the Commonwealth—Rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and other bodies or channels of conveyance of surface water and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.
Willful violation—An act or omission which violates the acts, this chapter, Chapter 87, 88, 89 or 90, or a permit condition required by the acts, this chapter or Chapter 87, 88, 89 or 90, committed by a person who intends the result which actually occurs.
Authority The provisions of this § 86.1 amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. § 1406.7); section 5 of The Clean Streams Law (35 P.S. § 691.5); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. § 30.53b); sections 4(a), (d) and (d.2) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § § 1396.4(a), (d) and (d.2) and 1396.4b); PA. CONST. ART. 1, § 27; and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 86.1 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 November 18, 1988, 18 Pa.B. 5155, effective August 25, 1989, 19 Pa.B. 3674; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended April 9, 1993, effective April 10, 1993, 23 Pa.B. 1711; 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 November 14, 1997, effective November 15, 1997, 27 Pa.B. 6041; amended November 28, 1997, effective November 29, 1997, 27 Pa.B. 6186; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289; corrected January 12, 2001, effective October 9, 1999, 31 Pa.B. 145; corrected July 25, 2003, effective November 15, 1997, 33 Pa.B. 3608; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775; amended August 29, 2008, effective August 30, 2008; 38 Pa.B. 4742; amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084; amended November 9, 2012, effective November 10, 2012, 42 Pa.B. 7013; amended August 21, 2015, effective August 22, 2015, 45 Pa.B. 4904; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (392394) and (378135) to (378142).
Notes of Decisions This chapter is not preempted by the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. § § 1201—1328) since the act allows for State regulations providing for more stringent land use and environmental control. Budinsky v. Department of Environmental Resources, 819 F.2d 418 (3rd Cir. 1987); cert. denied 484 U. S. 926; reh’g denied 484 U. S. 1083 (U. S. 1988).
For purposes of determining bond forfeiture for failure to reclaim, the definition of surface mining activities set forth in this section is interpreted to include nonpermitted areas only when the permitted area is adjacent or contingent to the nonpermitted area or when the ecological harm can be traced directly to the permitted area. Department of Environmental Resources v. Ogden, 501 A.2d 311 (Pa. Cmwlth. 1985).
Cross References This section cited in 25 Pa. Code § 86.36 (relating to review of permit applications); 25 Pa. Code § 86.37 (relating to criteria for permit approval or denial); 25 Pa. Code § 86.43 (relating to improvidently issued permits); 25 Pa. Code § 86.62 (relating to identification of interests); 25 Pa. Code § 86.63 (relating to compliance information); 25 Pa. Code § 86.102 (relating to areas where mining is prohibited or limited); 25 Pa. Code § 86.353 (relating to identification of ownership); 25 Pa. Code § 87.157 (relating to cessation of operations: temporary); 25 Pa. Code § 88.131 (relating to cessation of operations: temporary); 25 Pa. Code § 88.219 (relating to cessation of operations: temporary); 25 Pa. Code § 88.332 (relating to cessation of operations: temporary); 25 Pa. Code § 88.333 (relating to cessation of operations: permanent); 25 Pa. Code § 90.167 (relating to cessation of operations: temporary); 25 Pa. Code § 90.168 (relating to cessation of operations: permanent); 25 Pa. Code § 90.305 (relating to approval or denial); 25 Pa. Code § 95.10 (relating to treatment requirements for new and expanding mass loadings of Total Dissolved Solids (TDS)); and 25 Pa. Code § 290.104 (relating to beneficial use at coal mining activity sites).
§ 86.2. Scope.
This chapter specifies certain general procedures and rules for those persons who engage in coal mining activities. This chapter together with Chapters 87—90 specifies the procedures and rules for those who engage in coal mining activities.
Source The provisions of this § 86.2 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 May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (238925) to (238926).
§ 86.3. Use of Coal Refuse Disposal Control Fund.
(a) Moneys, including permit application fees, fines, bond forfeitures and civil penalties deposited in the Coal Refuse Disposal Control Fund may be used by the Department for the elimination of pollution, the abatement of health and safety hazards and nuisances, reclamation and other related uses including conducting scientific studies and research as authorized under the Coal Refuse Disposal Control Act (52 P. S. § § 30.51—30.66).
(b) Permit application fees required under this chapter for permit applications submitted under the Coal Refuse Disposal Control Act will be used by the Department to cover its costs to review applications.
Authority The provisions of this § 86.3 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); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 86.3 adopted June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended November 9, 2012, effective November 10, 2012, 42 Pa.B. 7013. Immediately preceding text appears at serial page (357454).
§ 86.5. Extraction of coal incidental to noncoal surface mining.
(a) A person who intends to extract coal incidental to the extraction of other minerals shall do so under the provisions of a noncoal surface mining permit issued under Chapter 77 (relating to noncoal mining) and subject to the conditions described in this section. Incidental coal extraction which has been approved by the Department subject to the conditions in this section shall be exempt from the other requirements of this chapter and the requirements of Chapter 87 and Chapter 88, Subchapters A—C.
(b) Subject to Department approval, for purposes of determining the beginning of the cumulative measurement period, the operator shall select and consistently use one of the following:
(1) For mining areas where coal or other minerals were extracted prior to August 3, 1977, the date extraction of coal or other minerals commenced at that mining area or August 3, 1977, whichever is earlier.
(2) For mining areas where extraction of coal or other minerals commenced on or after August 3, 1977, the date extraction of coal or other minerals commenced at that mining area.
(c) A person who plans to commence extraction of coal incidental to noncoal surface mining shall file with the Department a complete request for exemption from the requirements identified in subsection (a). The request shall be submitted as part of an application for a permit, or for a permit revision, to conduct noncoal surface mining activities.
(d) A person who has commenced incidental extraction of coal under a noncoal mining activity permit prior to December 16, 1995, may continue the extraction until February 14, 1996, after which no further incidental coal extraction may occur unless that person files an administratively complete request for exemption as described in subsection (g). Incidental coal extraction may then continue until the Department has made its final decision and written determination on the request for exemption.
(e) Sections 77.121 and 77.122 (relating to public notices of filing of permit applications; and opportunity for submission of written comments or objections on the permit application) shall be followed by the applicant and by the Department.
(f) Information relative to incidental coal extraction will be made available to the public as follows:
(1) Except as provided in paragraph (2), the information submitted to the Department under this section shall immediately be made available for public inspection and copying at the local offices of the Department having jurisdiction over the mining operations claiming exemption until at least 3 years after expiration of the period during which the subject mining area is active.
(2) The Department may keep information submitted to the Department under this section confidential if the person submitting it requests in writing, at the time of submission, that it be kept confidential and the information concerns trade secrets or is privileged commercial or financial information of the persons intending to conduct operations under this section.
(3) Information requested to be held as confidential under paragraph (2) will not be made publicly available until after notice and opportunity to be heard is afforded persons both seeking and opposing disclosure of the information.
(g) A request for exemption shall include at a minimum:
(1) The name and address of the applicant.
(2) A list of the minerals sought to be extracted.
(3) Estimates of annual production of coal and the other minerals within each mining area over the anticipated life of the mining operation.
(4) Estimated annual revenues to be derived from bona fide sales of coal and other minerals to be extracted within the mining area.
(5) The estimated annual fair market values at the time of projected use of the coal and other minerals to be extracted from the mining area, where coal or the other minerals are to be used rather than sold.
(6) The basis for annual production, revenue and fair market value estimates.
(7) A description, including county, municipality and boundaries of the land, of sufficient certainty that the mining areas may be located and distinguished from other mining areas.
(8) An estimate to the nearest acre of the number of acres that will compose the mining area over the anticipated life of the mining operation.
(9) Evidence of publication, in a newspaper of general circulation in the county of the mining area, of a public notice that a request for exemption has been filed with the Department. The public notice shall identify the persons claiming the exemption and contain a description of the proposed operation and its locality that is sufficient for interested persons to identify the operation.
(10) Representative stratigraphic cross-sections based on test borings or other information identifying and showing the relative position, approximate thickness and density of the coal and each other mineral to be extracted for commercial use or sale and the relative position and thickness of material, not classified as other minerals, that will also be extracted during the conduct of mining activities.
(11) A map to a scale of not less then 1:25,000 which clearly identifies the mining area.
(12) A general description of mining and mineral processing activities for the mining area.
(13) A summary of sales commitments and agreements for future delivery, if any, which the applicant has received for other minerals to be extracted from the mining area, or a description of potential markets for the minerals.
(14) A description specifying the use, if the other minerals are to be commercially used by the applicant.
(15) For permitted noncoal surface mining activities which have been in operation prior to requesting an exemption, the following additional information:
(i) Relevant documents the operator has received from the Department documenting its exemption from the act.
(ii) The cumulative production of the coal and other minerals from the mining area.
(iii) Estimated tonnages of stockpiled coal and other minerals.
(16) Other information pertinent to the qualification of the operation as exempt.
(h) The Department will notify the applicant if the request for exemption is incomplete and may at any time require submittal of additional information. The Department will approve a request for exemption only if the following are satisfied:
(1) The cumulative production of coal extracted from the mining area determined annually, as described in subsection (j)(4), does not exceed 16 2/3% of the total cumulative production of coal and other minerals removed during the period for purposes of bona fide sale or reasonable commercial use.
(2) Coal is produced from a geological stratum lying above the deepest stratum from which other minerals are extracted for purposes of bona fide sale or reasonable commercial use.
(3) The cumulative revenue derived from the coal extracted from the mining area determined annually does not exceed 50% of the total cumulative revenue derived from the coal and other minerals removed for purposes of bona fide sale or reasonable commercial use. If the coal extracted or the minerals removed are used by the operator or transferred to a related entity for use instead of being sold in a bona fide sale, the fair market value of the coal or other minerals shall be calculated at the time of use or transfer and shall be considered rather than revenue.
(4) Each other mineral upon which an exemption under this section is based shall be a commercially valuable mineral for which a market exists or which is mined in bona fide anticipation that a market will exist for the mineral in the reasonably foreseeable future, not to exceed 12 months from the end of the current period for which cumulative production is calculated, as evidenced by a legally binding agreement or other commitment for the future sale of other minerals, or other evidence that will establish to the Department's satisfaction that a bona fide market exists for the other minerals.
(5) If either coal or other minerals are transferred or sold by the operator to a related entity for its use or sale, the transaction shall be made for legitimate business purposes.
(i) Exemption determination will be as follows:
(1) Within 90 days after filing of an administratively complete application, the Department will make a written determination whether, and under what conditions, an exemption can be granted under this section, and will notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.
(2) The determination of exemption shall be based upon information contained in the application and other information available to the Department at that time.
(3) A person who is adversely affected by the determination may file an appeal as provided for under Chapter 1021 (relating to Environmental Hearing Board).
(j) A person whose request for exemption has been approved by the Department shall:
(1) Maintain onsite or at other locations available to authorized representatives of both the Department and the United States Department of the Interior information necessary to verify the exemption including, but not limited to, commercial use and sales information, extraction tonnages, and a copy of the exemption application and exemption approved by the Department.
(2) Notify the Department upon the completion of the mining operation or permanent cessation of coal extraction activities.
(3) Conduct operations in accordance with the approved request for exemption.
(4) File a written annual report beginning no later than 30 days after the end of the calendar quarter during which coal extraction commenced and each succeeding year no later than the anniversary of the initial report, for each mining area covered by an exemption. The report shall cover the preceding 12-month cumulative measurement period and shall contain the following information:
(i) Annual production of coal and other minerals and annual revenue derived from coal and other minerals during the preceding 12-month period.
(ii) The cumulative production of coal and other minerals and the cumulative revenue derived from coal and other minerals.
(iii) The number of tons of extracted coal sold in bona fide sales and total revenue derived from the sales.
(iv) The number of tons of coal extracted and used or transferred by the operator or related entity and the estimated total fair market value of the coal.
(v) The number of tons of coal stockpiled.
(vi) The number of tons of other commercially valuable minerals extracted and sold in bona fide sales and total revenue derived from the sales.
(vii) The number of tons of other commercially valuable minerals extracted and used or transferred by the operator or related entity and the estimated total fair market value of the minerals.
(viii) The number of tons of other commercially valuable minerals removed and stockpiled by the operator.
(k) Stockpiling of coal and other minerals for calculating and reporting of cumulative production will be considered as follows:
(1) Coal extracted and stockpiled may be excluded from the calculation of cumulative production until the time of its sale, transfer to a related entity or use under one of the following:
(i) Up to an amount equaling a 12-month supply of the coal required for future sale, transfer or use as calculated based upon the average annual sales, transfer and use from the mining area over the 2 preceding years.
(ii) Up to an amount that would represent a 12-month supply of the coal required for future sales, transfer or use as calculated based on the average amount of coal sold, transferred or used each month for a mining area where coal has been extracted for a period of less than 2 years.
(2) The Department will disallow all or part of an operator’s tonnages of stockpiled other minerals for purposes of meeting the requirements of this section if the operator fails to maintain adequate and verifiable records of the mining area of origin, the disposition of stockpiles or if the disposition of the stockpiles indicates the lack of commercial use or market for the minerals.
(3) The Department may allow an operator to utilize tonnages of stockpiled other minerals for purposes of meeting the requirements of this section only if the following apply:
(i) The stockpiling is necessary to meet market conditions or is consistent with generally accepted industry practices.
(ii) Except as provided in paragraph (4), the stockpiled other minerals do not exceed a 12-month supply of the mineral required for future sales as approved by the Department on the basis of the exemption application.
(4) The Department may allow an operator to utilize tonnages of stockpiled other minerals beyond the 12-month limit established in paragraph (3) if the operator can demonstrate to the Department’s satisfaction that the additional tonnage is required to meet future business obligations of the operator, such as may be demonstrated by a legally binding agreement or other commitment or legitimate evidence of the need for future delivery of the minerals.
(5) The Department may periodically revise the other mineral stockpile tonnage limits in accordance with the criteria established by paragraphs (3) and (4) based on additional information available to the Department.
(l) The Department will conduct an annual compliance review of the mining area, utilizing the annual report submitted under subsection (j)(4), an onsite inspection and other information available to the Department.
(m) If the Department has reason to believe that a specific mining area was not exempt under this section at the end of the previous reporting period, is not exempt or will be unable to satisfy the exemption criteria at the end of the current reporting period, the Department will notify the operator that the exemption may be revoked and the reasons therefore. The exemption will be revoked unless the operator demonstrates to the Department within 30 days that the mining area in question should continue to be exempt. The operator and interested parties will be immediately notified of the revocation or of the decision not to revoke the exemption.
(n) Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained and shall comply with the reclamation standards of the Department with regard to conditions, areas and activities existing at the time of revocation or denial.
(o) An operator who does not conduct activities in accordance with the terms of an approved exemption and knows or should know the activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of the Department’s regulations which occur during the period of the activities.
Authority The provisions of this § 86.5 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19a); sections 4 and 11(a) of the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. § § 3304 and 3311(a)); 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 § 86.5 adopted February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084. Immediately preceding text appears at serial pages (354284), (336551) to (336552), (206635) to (206638) and (310149).
Cross References This section cited in 25 Pa. Code § 86.1 (relating to definitions).
§ 86.6. Extraction of coal incidental to government-financed construction or government-financed reclamation projects.
(a) Extraction of coal incidental to government-financed construction or government-financed reclamation projects is exempt from the permitting requirements of the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19b) 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 the following conditions are met:
(1) During the project site selection process and prior to development of final construction plans or reclamation plans for projects located within coal bearing regions, the government entity financing the construction or reclamation has provided the Department with an opportunity to provide comments on the potential environmental impacts of the project.
(2) 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, railroad, utility line or other similar construction, or within the boundaries of the area directly affected by other types of government-financed construction or government-financed reclamation, may be considered incidental to that construction or reclamation.
(3) 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.
(4) 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.
(5) The construction or reclamation is performed under a bond, contract and specifications that substantially provide for and require protection of the environment, reclamation of the affected area, and handling of excavated materials in a manner consistent with the acts and regulations implementing the acts.
(6) The Department has approved the standards and specifications for protection of the environment that will apply to the project when potential adverse environmental impacts have been identified.
(b) Construction funded through government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent or in-kind payments do not qualify as government-financed construction.
(c) A person extracting coal incidental to government-financed construction or government-financed 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 documents:
(1) A written description of the construction or reclamation project.
(2) A map showing 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) A statement identifying 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.
(4) When the area delineated in paragraph (2) is wholly or partially within an area designated unsuitable for mining by the EQB under § 86.130 (relating to areas designated as unsuitable for mining), a copy of the detailed report required by § 86.124(e) (relating to procedures: initial processing, recordkeeping and notification requirements).
(d) Government-financed construction projects and government-financed reclamation must comply with Chapters 91—96, 102 and 105.
Authority The provisions of this § 86.6 issued under section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b) and section 1920-A of The Administrative Code of 1929 (71 P. S. 510-20); amended under section 5 of The Clean Streams Law (35 P. S. § 691.5); and sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.4(a) and 1396.4b).
Source The provisions of this § 86.6 adopted March 11, 2005, effective March 12, 2005, 35 Pa.B. 1663; amended August 21, 2015, effective August 22, 2015, 45 Pa.B. 4904. Immediately preceding text appears at serial pages (357460) to (357461).
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