Subchapter B. PERMITS
GENERAL REQUIREMENTS FOR PERMITS AND
PERMIT APPLICATIONS
Sec.
86.11. General requirements for permits.
86.12. Continued operation under interim permits.
86.13. Compliance with permits.
86.14. Permit application filing deadlines.
86.15. Permit application—general requirements.
86.16. Application contents.
86.17. Permit and reclamation fees.
86.18. Verification of application.
REVIEW, PUBLIC PARTICIPATION AND APPROVAL,
DISAPPROVAL OF PERMIT APPLICATIONS AND PERMIT
TERMS AND CONDITIONS
86.31. Public notices of filing of permit applications.
86.32. Opportunity for submission of written comments or objections on the permit application.
86.33. [Reserved].
86.34. Informal conferences.
86.35. Public availability of information in permit applications.
86.36. Review of permit applications.
86.37. Criteria for permit approval or denial.
86.38. Criteria for approval or denial: existing structures.
86.39. Final permit action.
86.40. Permit terms.
86.41. Conditions of permits: general and right of entry.
86.42. Conditions of permits: environment, public health and safety.
86.43. Improvidently issued permits.
86.44. Rescission of improvidently issued permits.
PERMIT REVIEWS, RENEWALS, REVISIONS
AND TRANSFERS
86.51. Reviews of active permits.
86.52. Permit revisions.
86.53. Reporting of new information.
86.54. Public notice of permit revision.
86.55. Permit renewals: general requirements.
86.56. Transfer of permit.
86.57. Reservation of rights.
MINIMUM REQUIREMENTS FOR LEGAL FINANCIAL COMPLIANCE AND RELATED INFORMATION
86.61. Responsibilities.
86.62. Identification of interests.
86.63. Compliance information.
86.64. Right of entry.
86.65. Relationships to areas designated unsuitable for mining.
86.66. [Reserved].
86.67. Personal injury and property damage insurance information.
86.68. [Reserved].
86.69. [Reserved].
86.70. Proof of publication.
Cross References This subchapter cited in 25 Pa. Code § 86.167 (relating to transfer of permits).
GENERAL REQUIREMENTS FOR PERMITS AND
PERMIT APPLICATIONS
§ 86.11. General requirements for permits.
(a) No person may operate a mine or allow a discharge from a mine into the waters of the Commonwealth unless the person has obtained a permit from the Department.
(b) Permits will be issued only to an operator.
(c) Except as provided in § 86.12 (relating to continued operation under interim permits) and Subchapter E (relating to coal exploration), on and after 8 months from the effective date of this chapter, no person may engage in or carry out coal mining activities within this Commonwealth unless that person has obtained a valid permit and authorization issued by the Department.
Source The provisions of this § 86.11 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. Immediately preceding text appears at serial page (148466).
Notes of Decisions It was proper for the Department of Environmental Resources to refuse to exempt small mines from its permit requirements and this section was not preempted by Federal law. Budinsky v. Department of Environmental Resources, 819 F.2d 418, 420 (3rd Cir. 1987); cert. denied 484 U. S. 926; reh’g denied 484 U. S. 1083 (U. S. 1988).
Cross References This section cited in 25 Pa. Code § 86.12 (relating to continued operation under interim permits); and 25 Pa. Code § 88.381 (relating to general requirements).
§ 86.12. Continued operation under interim permits.
(a) A person conducting coal mining activities under a permit issued in accordance with Chapter 13 (relating to compliance with the Surface Mining Control and Reclamation Act of 1977), who has filed an application for permit under § 86.14(a) (relating to permit application filing deadlines) for which the Department has not rendered a decision may conduct these activities under the permit beyond the period prescribed in § 86.11(c) (relating to general requirements for permits) if:
(1) A timely and complete application for a permit has been made to the Department under this chapter.
(2) The Department has not yet rendered an initial administrative decision with respect to the application.
(3) The operations are conducted in compliance with terms and conditions of the permit, Chapter 13, the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19b), the Coal Refuse Disposal Control Act (52 P. S. § § 30.51—30.66), The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.1—1406.21), the Dam Safety and Encroachments Act (32 P. S. § § 693.1—693.27) and the Air Pollution Control Act (35 P. S. § § 4001—4015).
(b) A person conducting coal preparation activities which were not subject to the requirements of this chapter and Chapters 87—90 prior to August 25, 1989 may continue operating the facility if the following requirements are met:
(1) An initial permit application is submitted by October 24, 1989.
(2) A complete application as defined under § 86.16 (relating to application contents) is submitted to the Department in accordance with a schedule established by the Department.
(3) The Department has not yet rendered an initial administrative decision with respect to the application.
(4) The operations are conducted in compliance with the requirements of the acts and the performance standards in this chapter and Chapters 87—90.
Authority The provisions of this § 86.12 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); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Source The provisions of this § 86.12 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; corrected March 17, 1989, 19 Pa.B. 1169, effective August 25, 1989, 19 Pa.B. 3674; amended August 21, 2015, effective August 22, 2015, 45 Pa.B. 4904. Immediately preceding text appears at serial pages (336553) to (336554).
Cross References This section cited in 25 Pa. Code § 86.11 (relating to general requirements for permits); 25 Pa. Code § 86.31 (relating to public notices of filing of permit applications); 25 Pa. Code § 87.203 (relating to applicability); 25 Pa. Code § 88.381 (relating to general requirements); 25 Pa. Code § 88.503 (relating to applicability); and 25 Pa. Code § 90.303 (relating to applicability).
§ 86.13. Compliance with permits.
A person may not conduct coal mining activities except under permits issued under this chapter and in compliance with the terms and conditions of the permit and the requirements of this chapter and Chapters 87—90 and the statutes under which they were promulgated.
Source The provisions of this § 86.13 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.
Notes of Decisions Permit Required
When read together, section 315(a) of The Clean Streams Law (35 P. S. § 691.315(a)) and this section clearly express a legislative and regulatory interest to require all ongoing and future coal mining activities to be conducted only under permits issued under the primacy regulations. Bloom v. Department of Environmental Resources, 515 A.2d 361 (Pa. Cmwlth. 1986).
Cross References This section cited in 25 Pa. Code § 88.381 (relating to general requirements).
§ 86.14. Permit application filing deadlines.
(a) Each person who possesses a permit for coal mining activities issued by the Department prior to the effective date of this chapter and who expects to conduct the permitted activities after the expiration of 8 months from the effective date of this chapter shall reapply for a permit for those activities within 2 months of the effective date of this chapter.
(b) Each person who conducts or expects to conduct new coal mining activities shall file a complete application for a permit for coal mining activities a minimum of 180 days prior to the anticipated starting date of the activities or a shorter period of time as determined by the Department.
Source The provisions of this § 86.14 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 § 86.12 (relating to continued operation under interim permits); 25 Pa. Code § 86.16 (relating to application contents); 25 Pa. Code § 86.31 (relating to public notices of filing of permit applications); 25 Pa. Code § 86.39 (relating to final permit action); 25 Pa. Code § 87.203 (relating to applicability); 25 Pa. Code § 88.381 (relating to general requirements); 25 Pa. Code § 88.503 (relating to applicability); and 25 Pa. Code § 90.303 (relating to applicability).
§ 86.15. Permit application—general requirements.
(a) Application for a permit under this chapter shall be submitted to the Department in writing, upon forms furnished by the Department.
(b) Each application for a permit shall be accompanied by information, maps, plans, specifications, design analyses, test reports and other data required by the Department to determine compliance with the standards, requirements or purposes of this chapter.
(c) Information set forth in the application shall be current, presented clearly and concisely, and supported by appropriate references to technical and other written material available to the Department.
(d) Technical data submitted in the application shall include:
(1) Names of persons or organizations which collected and analyzed the data.
(2) Dates of the collection and analyses.
(3) Descriptions of methodology used to collect and analyze the data.
Source The provisions of this § 86.15 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 § 88.381 (relating to general requirements).
§ 86.16. Application contents.
Persons submitting permit applications under § 86.14(a) (relating to permit application filing deadlines), shall reapply for a permit within 2 months by submitting an initial application on forms available from the Department and shall thereafter submit a complete application, including proof of publication, in accordance with a schedule determined by the Department. Other applications submitted under § 86.14(b) shall be complete and include, at a minimum, the applicable information required under this chapter and:
(1) Chapter 87 (relating to surface mining of coal) for surface mining activities.
(2) Chapter 88 (relating to anthracite coal) for anthracite coal mining activities.
(3) Chapter 89 (relating to underground mining of coal and coal preparation facilities) for underground mining activities and coal preparation activities.
(4) Chapter 90 (relating to coal refuse disposal) for coal refuse disposal activities.
Source The provisions of this § 86.16 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.
Notes of Decisions As the Department of Environmental Resources refused to process Petitioner’s application for a mining permit, petitioners subsequently commenced an action to compel the Department to process their application, and based on a prior Superior Court decision, requested the production of two memoranda for discovery which the Court determined to be protected from discovery under the work product doctrine as to one memorandum and immune on the basis of the attorney-client privilege as to the other. Sedat, Inc., v. Department of Environmental Resources, 641 A.2d 1243 (Pa. Cmwlth. 1994).
Cross References This section cited in 25 Pa. Code § 86.12 (relating to continued operation under interim permits); and 25 Pa. Code § 88.381 (relating to general requirements).
§ 86.17. Permit and reclamation fees.
(a) A permit application for coal mining activities shall be accompanied by a payment to the ‘‘Commonwealth of Pennsylvania’’ for the amount of the permit application fee provided in the fee schedule in subsection (b) which corresponds to the type of application being submitted. For purposes of this subsection, permit applications include the applications in subsection (b).
(b) The permit application fee schedule is as follows:
(1) New Permits Fee Surface Mining Permit $3,250 Coal Refuse Reprocessing Permit $1,900 Coal Refuse Disposal Permit $3,250 Coal Preparation Plant Permit $1,650 Anthracite Underground Mining Permit $1,650 Bituminous Underground Mining Permit $5,750 Post Mining Activity Permit $300 Incidental Extraction Permit $1,650
(2) Major Permit Revisions Fee Surface Mining Permit $300 Coal Refuse Reprocessing Permit $300 Anthracite Coal Refuse Disposal Permit $300 Bituminous Coal Refuse Disposal Permit $1,250 Anthracite Coal Preparation Plant Permit $300 Bituminous Coal Preparation Plant Permit $1,250 Anthracite Coal Underground Mining Permit $300 Bituminous Coal Underground Mining Permit $1,250
(3) Permit Transfer Fee All $250
(4) Permit Renewal Fee All $250
(5) Other Actions Fee Auger Safety Permit $200 Bond Liability Revision $100 (c) For surface coal mine facilities, coal refuse reprocessing facilities and coal mining activity facilities, except for bituminous underground mines, permit application fees collected will be deposited in the Surface Mining Conservation and Reclamation Fund. Permit application fees collected for bituminous underground mines will be deposited in the Bituminous Mine Subsidence and Land Reclamation Fund. For coal refuse disposal facilities, permit application fees collected will be deposited in the Coal Refuse Disposal Control Fund. Permit application fees required under this section will be used by the Department to cover its costs to review permit applications.
(d) The Department will review the adequacy of the permit application fees in this section at least once every 3 years and provide a written report to the EQB. The report will identify any disparity between the amount of program income generated by the fees and the costs to administer these programs and contain recommendations to increase fees to eliminate the disparity, including recommendations for regulatory amendments to increase program fees.
(e) In addition to the bond established under § § 86.143, 86.145, 86.149 and 86.150 and subject to the exception provided for in § 86.283(c) (relating to procedures), the applicant for a permit or a permit amendment shall pay a per acre reclamation fee for surface mining activities except for the surface effects of underground mining. This reclamation fee will be assessed for each acre of the approved operational area and shall be paid by the applicant prior to the Department’s issuance of a surface mining permit. If a permit amendment results in an increase in the approved operational area, the reclamation fee will be assessed on the increased acreage and shall be paid by the operator prior to the Department’s issuance of the permit amendment.
(1) The reclamation fee will be deposited into a separate subaccount within the Surface Mining Conservation and Reclamation Fund called the Reclamation Fee O&M Trust Account, as a supplement to bonds forfeited from ABS Legacy Sites. The reclamation fee will be used by the Department to pay the construction costs and operation and maintenance costs associated with treating postmining pollutional discharges at ABS Legacy Sites, and the moneys may not be used for any other purpose. The interest earned on the moneys in the Reclamation Fee O&M Trust Account will be deposited into the Reclamation Fee O&M Trust Account and will be used by the Department to pay the construction costs and operation and maintenance costs associated with treating postmining pollutional discharges at ABS Legacy Sites. The interest may not be used for any other purpose. For purposes of this section, operation and maintenance costs include recapitalization costs.
(2) After the end of each fiscal year, the Department will prepare a fiscal-year report containing a financial analysis of the revenue and expenditures of the Reclamation Fee O&M Trust Account for the past fiscal year and the projected revenues and expenditures for the current fiscal year. The report will include the Department’s calculation of the required amount of the reclamation fee, the proposed adjustment of the reclamation fee amount and information necessary for determining the need to supplement the funding of the Reclamation Fee O&M Trust Account, including an estimate of the reclamation fee for the calendar year immediately following the current fiscal year. The need to supplement the funding of the Reclamation Fee O&M Trust Account will be based on the need to provide for long-term operations at ABS Legacy Sites. The fiscal-year report will be submitted to the members of the Mining and Reclamation Advisory Board for their review and comment and will be published on the Department’s web site. Notice of the report’s availability will be published in the Pennsylvania Bulletin. The Department will review the fiscal-year report at a meeting of the Mining and Reclamation Advisory Board.
(3) The amount of the reclamation fee shall be $100 per acre until December 31, 2009. Commencing January 1, 2010, and continuing until either a permanent alternative funding source is established or the ABS Legacy Sites Trust Account is actuarially sound, the reclamation fee will be adjusted as necessary to ensure that there are sufficient revenues to maintain a balance in the Reclamation Fee O&M Trust Account of at least $3,000,000.
(i) The reclamation fee will be used until the ABS Legacy Sites Trust Account is actuarially sound unless an alternative permanent funding source in lieu of the reclamation fee is used to fund the Reclamation Fee O&M Trust Account.
(ii) Until the ABS Legacy Sites Trust Account is actuarially sound, the alternative permanent funding source must provide sufficient revenues to maintain a balance in the Reclamation Fee O&M Trust Account of at least $3,000,000 and to pay the annual operation and maintenance costs for treating postmining pollutional discharges at the ABS Legacy Sites. Funds that are not needed for annual operation and maintenance or to maintain the $3,000,000 balance may be deposited into the ABS Legacy Sites Trust Account.
(4) Commencing January 1, 2010, and continuing until the ABS Legacy Sites Trust Account is actuarially sound, the amount of the reclamation fee will be annually calculated and, if necessary, will be adjusted in multiples of $50 based on the following factors:
(i) The current balance in the Reclamation Fee O&M Trust Account.
(ii) The total amount of revenue into the trust account during the previous fiscal year from collection of the reclamation fee, the interest accrued by the Reclamation Fee O&M Trust Account, the deposits of civil penalties into the trust account and deposits from other sources of moneys into the trust account.
(iii) The amount of ongoing operation and maintenance costs incurred by the Reclamation Fee O&M Trust Account during previous fiscal years.
(iv) The projected number of acres subject to the reclamation fee during the current fiscal year.
(v) The projected amount of revenue into the Reclamation Fee O&M Trust Account during the current fiscal year from projected interest accrued by the trust account, projected deposits of civil penalties and projected deposits of moneys from other sources.
(vi) The projected expenditures of the Reclamation Fee O&M Trust Account for operation and maintenance costs for the current fiscal year.
(5) Following the Department’s review of its calculation of the required reclamation fee amount at a public meeting of the Mining and Reclamation Advisory Board under paragraph (2), the Department will publish the adjustment in the required amount of the reclamation fee in the Pennsylvania Bulletin. Adjustments to the amount of the reclamation fee will become effective upon publication in the Pennsylvania Bulletin. The Department’s determination of the required amount of the reclamation fee under paragraphs (3) and (4) will be a final action of the Department appealable to the EHB.
(6) The Department will cease to assess and collect the reclamation fee when the ABS Legacy Sites Trust Account established under § 86.187(a) (relating to use of money) becomes actuarially sound. The ABS Legacy Sites Trust Account will become actuarially sound when the following conditions are met:
(i) Financial guarantees sufficient to cover reclamation costs, including the costs to treat each discharge in perpetuity, have been approved by the Department for all mine sites permitted under the primacy alternate bonding system.
(ii) Construction of the necessary discharge treatment facilities has been completed at the ABS Legacy Sites.
(iii) The ABS Legacy Sites Trust Account, combined with the Reclamation Fee O&M Trust Account, contains funds which generate interest at a rate and in an amount sufficient to pay the annual operation and maintenance costs for treating postmining pollutional discharges at the ABS Legacy Sites.
Authority The provisions of this § 86.17 amended under 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); 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); section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20); and PA. CONST. ART. 1, § 27.
Source The provisions of this § 86.17 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 August 6, 1993, effective August 7, 1993, 23 Pa.B. 3685; amended August 29, 2008, effective August 30, 2008, 38 Pa.B. 4742; amended November 9, 2012, effective November 10, 2012, 42 Pa.B. 7013; amended August 21, 2015, effective August 22, 2015, 45 Pa.B. 4904. Immediately preceding text appears at serial pages (364373) to (364376).
Cross References This section cited in 25 Pa. Code § 86.162b (relating to Land Reclamation Financial Guarantees); 25 Pa. Code § 86.187 (relating to use of money); 25 Pa. Code § 86.283 (relating to procedures); and 25 Pa. Code § 88.381 (relating to general requirements).
§ 86.18. Verification of application.
Applications for permits shall be verified by a responsible official of the applicant with a statement that the information contained in the application is true and correct to the best of the official’s information and belief, and attested by a notary public or district justice.
Source The provisions of this § 86.18 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 § 88.381 (relating to general requirements).
REVIEW, PUBLIC PARTICIPATION AND APPROVAL,
DISAPPROVAL OF PERMIT APPLICATIONS AND PERMIT
TERMS AND CONDITIONS
§ 86.31. Public notices of filing of permit applications.
(a) An applicant for a permit, transfer or renewal, or for revision as required by § 86.54 (relating to public notice of permit revision) shall place at the time of filing an application with the Department, an advertisement in a local newspaper of general circulation in the locality of the proposed coal mining activities at least once a week for 4 consecutive weeks. The advertisement shall contain, at a minimum, the following information:
(1) The name and business address of the applicant.
(2) A map or description which shall:
(i) Clearly show or describe towns, rivers, streams or other bodies of water, local landmarks and other information, including routes, streets or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area.
(ii) Clearly show or describe the exact location and boundaries of the proposed permit area, and the receiving stream.
(iii) State the name of the United States Geological Survey 7.5 minute quadrangle map which contains the area shown or described.
(iv) Indicate the north point, if a map is used.
(3) The location where a copy of the application is available for public inspection under subsection (b).
(4) The name and address of the Department’s appropriate district or regional office to which written comments, objections or requests for informal conferences on the application may be submitted under § § 86.32 and 86.34 (relating to opportunity for submission of written comments or objections on the permit application; and informal conferences).
(5) A concise statement describing the public road, the particular part to be relocated, where the relocation is to occur and the duration of the relocation, if an applicant seeks a permit to mine within 100 feet (30.48 meters) of the outside right-of-way of a public road or to relocate a public road.
(6) If an applicant seeks a variance to conduct coal mining activities within 100 feet (30.48 meters) of a stream, a description of the activities and the name of the stream.
(b) No later than the first date of the newspaper advertisement under subsection (a), the applicant for a new permit, except as provided in § 86.35(a) (relating to public availability of information in permit applications), shall file a complete copy of the application for the public to copy and inspect at a public office approved by the Department in the county where the coal mining activities are to occur. The applicant shall file a subsequent revision of the application for a new permit with that office at the same time the revision is submitted to the Depart-ment. In the case of repermitting under § § 86.12 and 86.14 (relating to continued operation under interim permits; and permit application filing deadlines), permit renewals under § 86.55 (relating to permit renewals: general requirements), permit revisions under § 86.52 (relating to permit revisions) and permit transfers under § 86.56 (relating to transfer of permit), the permittee shall indicate in the public notice that a copy of the permit and accompanying documents is available for inspection and copying at the appropriate district or regional office.
(c) Upon receipt of a complete application, the Department will publish notice of the proposed activities in the Pennsylvania Bulletin and send written notice to the following:
(1) The city, borough, incorporated town or township in which the activities are located.
(2) Sewage and water treatment authorities and water companies that may be affected by the activities.
(3) Governmental planning agencies with jurisdiction to act with regard to land use, air or water quality planning in the area of the proposed activities.
(4) Federal, State and local government agencies with jurisdiction over or an interest in the area of the proposed activities, including, but not limited to, general governmental entities and fish and wildlife and historic preservation agencies.
(d) The content of the notice shall include:
(1) The application number.
(2) The name and address of the applicant.
(3) The township and county in which the operation is located.
(4) The receiving stream.
(5) A brief description of the operation and the location.
(6) The location where a copy of the application may be inspected.
(7) The location where comments on the application may be submitted.
(8) A statement that the application is for a new permit, a renewal of an existing permit or the transfer of an existing permit to a new operator.
(e) The applicant for a permit, transfer or renewal or revision for surface mining activities who proposes to conduct surface mining activities within 125 feet (38.1 meters) of a permitted or registered oil or gas well shall send to each permittee or to any owner or agent of any owner of a permitted or registered oil or gas well a notice, by certified mail, return receipt requested, that the applicant intends to conduct surface mining activities within 125 feet (38.1 meters) of the well. The notice shall include the information required by subsection (a)(1)—(4). The notice shall be sent by certified mail prior to the filing of the surface mining activities permit application with the Department. If the applicant demonstrates that it has made a good faith effort to comply with this requirement by mailing the required notice to the address of record or last known address of the registered well owner or permittee, and the notice has been returned as undeliverable or refused, notice may be deemed made by publication in compliance with subsection (a). Where a permittee under an approved surface mining permit proposes to conduct surface mining activities within 125 feet (38.1 meters) of a permitted or registered oil or gas well, and if publication of the proposed activities is not required, the surface mining permittee shall send the notice required by this subsection by certified mail, return receipt requested, to the owner, agent of an owner or permittee of a permitted or registered oil or gas well within 125 feet (38.1 meters) of the activities at least than 60 days prior to conducting the activities.
Authority The provisions of this § 86.31 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 § 86.31 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 May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (378153) to (378154) and (357463) to (357464).
Cross References This section cited in 25 Pa. Code § 86.32 (relating to opportunity for submission of written comments or objections on the permit application); 25 Pa. Code § 86.34 (relating to informal conferences); 25 Pa. Code § 86.52 (relating to permit revisions); 25 Pa. Code § 86.54 (relating to public notice of permit revision); 25 Pa. Code § 86.55 (relating to permit renewals: general requirements); 25 Pa. Code § 86.56 (relating to transfer of permit); 25 Pa. Code § 86.70 (relating to proof of publication); 25 Pa. Code § 86.129 (relating to coal exploration on areas designated as unsuitable for surface mining operations); 25 Pa. Code § 87.62 (relating to operational information); 25 Pa. Code § 88.42 (relating to operational plan: general information); 25 Pa. Code § 90.31 (relating to general requirements); and 25 Pa. Code § 290.104 (relating to beneficial use at coal mining activity sites).
§ 86.32. Opportunity for submission of written comments or objections on the permit application.
(a) Written comments or objections on the permit application or application for permit revision may be submitted to the Department within 30 days after the last publication of the newspaper advertisement placed by the applicant under § 86.31(a) (relating to public notices of filing of permit applications) by a person or an officer or head of a Federal, State or local government agency or authority. In addition to submitting comments, the permittee, owner or agent of an owner of an oil or gas well who receives a notice required by § 86.31(e) may provide the Department, within 30 days after the last publication of the newspaper advertisement placed by the applicant, or if publication of the advertisement is not required, within 45 days after receipt of the notice required by § 86.31(e), a description of the measures the well permittee, owner or agent believes are necessary to minimize damage, destruction or disruption of services provided by the oil or gas well which may be caused by the proposed surface mining activities. The Department will also publish notice of permit applications in the Pennsylvania Bulletin.
(b) The Department will immediately transmit comments or objections received under this section to the applicant and the office where the applicant filed a copy of the application for public inspection under § 86.31(b).
Source The provisions of this § 86.32 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 May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial page (206648).
Cross References This section cited in 25 Pa. Code § 86.31 (relating to public notices of filing of permit applications); 25 Pa. Code § 86.36 (relating to review of permit applications); and 25 Pa. Code § 86.129 (relating to coal exploration on areas designated as unsuitable for surface mining operations).
§ 86.33. [Reserved].
Source The provisions of this § 86.33 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.
§ 86.34. Informal conferences.
(a) A person or the officer or head of a Federal, State or local government agency or authority or the owner or operator of an oil and gas well who receives a notice required by § 86.31(e) (relating to public notices of filing of permit applications) may, in writing, request that the Department hold an informal conference on an application for a permit. The request shall:
(1) Briefly summarize the issues or objections to be raised by the requestor at the conference.
(2) State whether the requestor desires to have the conference conducted in the locality of the proposed coal mining activities.
(3) Be filed with the Department within 30 days after the last publication of the newspaper advertisement placed by the applicant under § 86.31(a) or within 30 days of receipt of notice by the public entities to whom notification is provided under § 86.31(c).
(b) Except as provided in subsection (c), if an informal conference is requested in accordance with subsection (a), the Department will hold an informal conference within 60 days of the close of the public comment period. The informal conference will be conducted according to the following:
(1) The conference will be held in the locality of the proposed mining, if requested under subsection (a)(2).
(2) The date, time and location of the informal conference will be advertised by the Department in a newspaper of general circulation in the locality of the proposed mine at least 2 weeks prior to the scheduled conference.
(3) If requested, in writing, by a conference requestor in a reasonable time prior to the conference, the Department may arrange with the applicant to grant parties to the conference access to the permit area for the purpose of gathering information relevant to the conference.
(4) The conference will be conducted by a representative of the Department who may accept oral or written statements and other relevant information from a party to the conference. An electronic or stenographic record will be made of the conference proceeding, unless waived by all parties. The record will be maintained and will be accessible to the parties of the conference until final release of the applicant’s performance bond under Subchapter F (relating to bonding and insurance requirements).
(c) If all parties requesting the informal conference stipulate agreement before the requested informal conference and withdraw their request, the informal conference need not be held.
(d) Informal conferences held in accordance with § 86.103(c) (relating to procedures) may be used by the Department as the public hearing required under proposed uses or relocation of public roads.
(e) The Department will give its findings of the conference to the permit applicant and to each person who is a party to the conference within 60 days of the conference.
(f) Within 60 days of the informal conference, the Department will notify the applicant of its decision to approve, disapprove or of its intent to disapprove the application subject to the submission of additional information to resolve deficiencies.
Source The provisions of this § 86.34 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 May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206648) and (234493).
Cross References This section cited in 25 Pa. Code § 86.31 (relating to public notices of filing of permit applications); 25 Pa. Code § 86.36 (relating to review of permit applications); 25 Pa. Code § 86.39 (relating to final permit action); and 25 Pa. Code § 90.166 (relating to postdisposal land use).
§ 86.35. Public availability of information in permit applications.
(a) Information contained in permit applications on file with the Department shall be open, upon request, for public inspection and copying at reasonable times; however, information in permit applications which pertains only to the analysis of the chemical and physical properties of the coal to be mined—excepting information regarding mineral or elemental contents of the coal, which are potentially toxic in the environment—shall be kept confidential and not made a matter of public record.
(b) Confidential information shall be clearly identified by the applicant and submitted under separate cover but concurrently with all other portions of the application.
Source The provisions of this § 86.35 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 § 86.31 (relating to public notices of filing of permit applications).
§ 86.36. Review of permit applications.
(a) The Department will review the complete application, written comments, written objections and records of a public hearing or informal conference held under § § 86.32 and 86.34 (relating to opportunity for submission of written comments or objections on the permit application; and informal conferences).
(b) If the Department decides to approve the application, it will require that the applicant file the bond in accordance with Subchapter F (relating to bonding and insurance requirements) before the permit is issued.
(c) The Department will verify from the schedule submitted under § 86.63 (relating to compliance information) or other information available to the Department that coal mining activities owned or controlled 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) are not currently in violation of the acts or the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. § § 1201—1328), or that the violation is in the process of being corrected to the satisfaction of the regulatory authority, department or agency which has jurisdiction over the violation of the acts or the Surface Mining Control and Reclamation Act of 1977 and a law, rule or regulation of a department or agency of the United States or of a state in the United States pertaining to air or water environmental protection incurred by the applicant in connection with a coal mining activity.
Source The provisions of this § 86.36 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 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084. Immediately preceding text appears at serial page (313491).
§ 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).
§ 86.38. Criteria for approval or denial: existing structures.
(a) An application for a permit or revision which proposes to use an existing structure in connection with or to facilitate the proposed activities will not be approved unless the applicant demonstrates and the Department finds, in writing, on the basis of the information set forth in the complete application that:
(1) The structure meets the standards of Chapter 87 Subchapter E; Chapter 88 Subchapters B—F; Chapter 89; or Chapter 90 Subchapter D.
(2) If the existing structure meets the performance standards of Chapter 87 Subchapter E; Chapter 88 Subchapters B—F; Chapter 89; or Chapter 90 Subchapter D, but does not meet the design requirements of Chapter 87 Subchapter E; Chapter 88 Subchapters B—F; Chapter 89; or Chapter 90 Subchapter D, no presumptive evidence of pollution to the environment or risk to public health or safety will result from use of the structure.
(b) Noncomplying existing structures shall be modified or reconstructed within 6 months after issuance of the permit; however, the Department may approve a longer period if the applicant demonstrates that:
(1) A longer period of time is necessary to modify or reconstruct the existing structure.
(2) The risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction.
Source The provisions of this § 86.38 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, effective upon the granting of primary jurisdiction to the Commonwealth of Pennsylvania by the Secretary of the United States Department of Interior, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860. Immediately preceding text appears at serial pages (72002) to (72003).
§ 86.39. Final permit action.
(a) The Department will approve or deny an application within the following time limits:
(1) A complete application submitted under § 86.14(a) (relating to permit application filing deadlines) will be approved or denied within 8 months of the effective date of this chapter or within 60 days of an informal conference, if held.
(2) A complete application submitted under § 86.14(b) will be approved or denied within one of the following time limits:
(i) If an informal conference or public hearing has been held under § 86.34 (relating to informal conferences), within 60 days of the close of the conference or hearing unless deficiencies in the application continue to exist and the Department has allowed additional time for the applicant to submit additional information to resolve the deficiencies.
(ii) If no informal conference or public hearing has been held under § 86.34, then within a reasonable time not to exceed 60 days after the close of the public comment period, unless deficiencies in the application continue to exist and the Department has allowed additional time for the applicant to submit additional information to resolve the deficiencies.
(b) Simultaneously with the final action on a permit application, the Department will:
(1) Issue notice of its decision to the applicant and each person and governmental official who filed a written objection or comment on the application. The Office of Surface Mining Reclamation and Enforcement will be given notice of the decision and provided a copy of a permit issued when requested.
(2) Publish a summary of its decision in the Pennsylvania Bulletin; and within 10 days after the granting of a permit, issue notice to the local government officials of each township or municipality in which the activities are located.
Source The provisions of this § 86.39 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. Immediately preceding text appears at serial pages (148480) to (148481).
Cross References This section cited in 25 Pa. Code § 86.129 (relating to coal exploration on areas designated as unsuitable for surface mining operations).
§ 86.40. Permit terms.
(a) Each permit shall be issued for a fixed term not to exceed 5 years. A longer fixed permit term may be granted, if:
(1) The application is full and complete for the specified longer term.
(2) The applicant shows that a specified longer term is reasonably needed to allow the applicant to obtain necessary internal or external financing of equipment, facilities or structures for the opening or continuance of the operation, and this need is confirmed in writing by the applicant’s source for the financing.
(b) A permit shall terminate if the permittee has not begun the coal mining activities covered by the permit within 3 years of the issuance of the permit. However, the Department may grant reasonable extensions of time for commencement of these activities upon receipt of a written statement showing that the extensions of time are necessary if litigation precludes the commencement or threatens substantial economic loss to the permittee or if there are conditions beyond the control and without the fault or negligence of the permittee. Requests for extensions shall be submitted to the Department prior to expiration of the permit.
(c) With respect to coal to be mined for use only in a synthetic fuel facility or specified major electric generating facility, the permittee shall be deemed to have commenced coal mining activities at the time that the construction of the synthetic fuel or generating facility is initiated.
Source The provisions of this § 86.40 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 page (234499).
§ 86.41. Conditions of permits: general and right of entry.
A permit issued by the Department is subject to the following conditions:
(1) The permittee shall conduct coal mining activities as described in the approved application, except to the extent that the Department otherwise directs in the permit that specific actions be taken.
(2) The permittee shall allow the authorized representatives of the Commonwealth, without advance notice or a search warrant, upon presentation of appropriate credentials, and without delay, to have access to the areas in which coal mining activities will or are being conducted.
(3) The permittee shall affect by coal mining activities only those lands specifically approved in the permit for which a bond has been filed with the Department in accordance with Subchapter F (relating to bonding and insurance requirements).
(4) The permittee shall pay all reclamation fees in accordance with 30 CFR Part 870 (relating to abandoned mine reclamation fees) for coal produced under the permit.
Source The provisions of this § 86.41 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 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial page (158702).
§ 86.42. Conditions of permits: environment, public health and safety.
Each permit issued by the Department will ensure and contain specific conditions requiring that the:
(1) Permittee shall take all possible steps to prevent an adverse impact to the environment or public health and safety resulting from noncompliance with terms or conditions of the permit, including:
(i) An accelerated or additional monitoring necessary to determine the nature and extent of noncompliance and the results of the noncompliance.
(ii) Providing warning, as soon as possible after learning of the noncompliance, to a person whose health and safety is in imminent danger due to the noncompliance.
(2) Permittee shall conduct the activities in accordance with measures specified in the permit as necessary to prevent environmental harm or harm to the health or safety of the public.
Source The provisions of this § 86.42 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.
§ 86.43. Improvidently issued permits.
(a) For the purpose of this section and § 86.44 (relating to rescission of improvidently issued permits) ‘‘other person responsible’’ means a person owned or controlled by the permittee or a person who owns or controls the permittee under the definition of ‘‘owned or controlled’’ or ‘‘owns or controls’’ in § 86.1 (relating to definitions).
(b) A coal mining activity permit is improvidently issued if the following apply:
(1) Under the violation review criteria of § 86.37(a)(8), (9) and (11) (relating to criteria for permit approval or denial) in effect at the time of permit issuance one of the following applies:
(i) The Department should not have issued the permit because of an unabated violation or a delinquent penalty or fee of the permittee or other person responsible.
(ii) The permit was issued on the presumption that a violation by the permittee or other person responsible at the time of permit issuance was in the process of being corrected to the satisfaction of the Department, but a cessation order for that violation was subsequently issued.
(2) The violation, penalty or fee of the permittee or other person responsible:
(i) Remains unabated or delinquent.
(ii) Is not the subject of an agreement, abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the Department.
(3) At the time of permit issuance the violation, penalty or fee was to the other person responsible and the link between the permittee and that other person responsible still exists, or if the link to the other person responsible was severed, the permittee continues to be responsible for the violation, penalty or fee.
(c) If the Department has found that it improvidently issued a coal mining activity permit according to subsection (b), the Department will take one or a combination of the following actions:
(1) Enter into an agreement with the permittee or other person responsible for the abatement of the violation or a schedule of payment of the penalty or fee.
(2) Impose on the permit a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee.
(3) Suspend the permit until the violation is abated or the penalty or fee is paid.
(4) Rescind the permit under § 86.44.
Source The provisions of this § 86.43 adopted June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075.
Cross References This section cited in 25 Pa. Code § 86.44 (relating to rescission of improvidently issued permits).
§ 86.44. Rescission of improvidently issued permits.
(a) To rescind an improvidently issued permit the Department will issue a notice of proposed suspension and rescission. The notice will:
(1) Describe the conditions under which the Department found the permit to have been improvidently issued.
(2) Suspend the permit after a period of time not to exceed 90 days from the date of the notice and no more than 90 days thereafter rescind the permit unless within those periods the permittee demonstrates and the Department finds that:
(i) The findings of the Department under § 86.43(b) (relating to improvidently issued permits) were erroneous.
(ii) The permittee or other person responsible has abated the violation on which the finding was based or paid the penalty or fee to the satisfaction of the responsible agency.
(iii) The violation, penalty or fee is the subject of a good faith appeal or of an agreement, abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency.
(iv) The permittee does not continue to be responsible for the violation, penalty or fee and has severed an ownership or control link with the other person responsible for the violation, penalty or fee.
(b) Upon suspension or rescission of the permit, the permittee shall cease coal mining activities under the permit except for violation abatement, reclamation and other environmental protection measures as required by the Department.
Source The provisions of this § 86.44 adopted June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075.
Cross References This section cited in 25 Pa. Code § 86.43 (relating to improvidently issued permits).
PERMIT REVIEWS, RENEWALS, REVISIONS AND TRANSFERS
§ 86.51. Reviews of active permits.
(a) The Department will review each permit issued and outstanding during the term of the permit. This review shall occur at the discretion of the Department during the permit term except as required by § 87.175 (relating to variance to contouring). For permits of longer than 5-year terms, a review of the permit shall be no less frequent than the permit midterm or every 5 years, whichever is more frequent.
(b) After this review, the Department may require revision or modification of the permit provision to ensure compliance with the act and the regulations.
Authority The provisions of this § 86.51 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 § 86.51 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 (313498) to (313499).
§ 86.52. Permit revisions.
(a) A revision to a permit shall be obtained for one or more of the following reasons:
(1) For a change to the coal mining activities set forth in the application upon which the permit is issued.
(2) When required by the Department.
(3) To continue operation after the cancellation or material reduction of the liability insurance policy.
(b) The permittee shall submit the application for a permit revision to the Department at least 180 days before undertaking the change. In emergency situations, the Department may waive the 180-day requirement.
(c) Applications for revisions shall be complete and contain the following information:
(1) The permittee’s name and address and permit number.
(2) A description of the proposed revisions, including appropriate maps, plans and application to demonstrate the proposed revision complies with the acts and this chapter.
(3) The original notarized proof of publication demonstrating compliance with § 86.31 (relating to public notices of filing of permit applications).
(4) An update of the information required under § § 86.62 and 86.63 (relating to identification of interests; and compliance information). If there are no changes, updates or corrections to the information required under § § 86.62 and 86.63, the operator need only submit a statement indicating that no change has occurred in the information previously submitted.
(d) The addition of acreage for mining of coal shall be considered as an application for a new permit, except for insignificant boundary correction.
Source The provisions of this § 86.52 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 June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial pages (158703) to (158704).
Cross References This section cited in 25 Pa. Code § 86.31 (relating to public notices of filing of permit applications); 25 Pa. Code § 86.53 (relating to reporting of new information); 25 Pa. Code § 87.203 (relating to applicability); 25 Pa. Code § 88.503 (relating to applicability); 25 Pa. Code § 89.112 (relating to impoundments); and 25 Pa. Code § 90.303 (relating to applicability).
§ 86.53. Reporting of new information.
In addition to the requirements of § 86.52 (relating to permit revisions), the permittee shall notify the Department of changes in ownership and control and in facts or information presented in the application except for compliance histories within 45 days of the occurrence of the changes. Changes in the ownership of, or a land use of properties adjacent to the permit area may be reported on a yearly basis. The permittee shall also provide annually, on forms provided by the Department, information required by § 86.62(b) and (c) (relating to identification of interests). Based on that notice, the Department may require permit revision or take other appropriate action.
Source The provisions of this § 86.53 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 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial page (158704).
Cross References This section cited in 25 Pa. Code § 87.119a (relating to hydrologic balance: water rights and replacement); and 25 Pa. Code § 88.107a (relating to hydrologic balance: water rights and replacement).
§ 86.54. Public notice of permit revision.
A permit revision request shall be subject to the notice requirements of § 86.31 (relating to public notices of filing of permit applications) under the following circumstances:
(1) For surface mining activities:
(i) Discharging to a different watershed not previously receiving a discharge from the operation or a change in water handling procedure. Water handling includes, but is not limited to, treatment facility design or use of other treatment techniques not identified by the EPA as Best Available Technology Economically Achievable (BAT) in 40 CFR Part 434 (relating to coal mining point source Category BPT, BAT, BCT limitations and new source performance standards) and additional discharge points.
(ii) The addition of auger mining to the operation.
(iii) The addition of coal refuse disposal, beneficial use of coal ash or biosolids, or residential septage for land reclamation to the operation.
(iv) The change of postmining land use.
(v) A physical change in the mine configuration is proposed. Physical changes include, but are not limited to, stream diversion structures, new or expanded road systems and elimination of public roads.
(vi) The addition of blasting to the operation.
(2) For underground mining activities:
(i) Discharging to a different watershed not previously receiving a discharge from the operation or a change in the water handling procedure. Water handling includes, but is not limited to, treatment facility design, or use of other treatment technologies not identified by the EPA as BAT in 40 CFR Part 434 and additional discharge points.
(ii) A physical change in the mine configuration is proposed. Physical changes include, but are not limited to, stream diversion structures, new or expanded road systems, elimination of public roads, new mine openings excluding boreholes and acreage modifications.
(iii) A change to the postmining land use or subsidence control plan is proposed.
(3) For coal refuse disposal activities:
(i) Discharging to a different watershed not previously receiving a discharge from the operation or a change in the water handling procedure. Water handling includes, but is not limited to, treatment facility design, or use of other treatment technologies not identified by the EPA as BAT in 40 CFR Part 434 and additional discharge points.
(ii) A physical change in the coal refuse disposal configuration which is proposed. Physical changes include, but are not limited to, stream diversion structures, new or expanded road systems—except roads on the fill—elimination of public roads, new disposal areas and acreage modifications.
(iii) A change in the postmining land use.
Authority The provisions of this § 86.54 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 § 86.54 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 (313500) to (313501).
Cross References This section cited in 25 Pa. Code § 86.31 (relating to public notices of filing of permit applications); and 25 Pa. Code § 290.104 (relating to beneficial use at coal mining activity sites).
§ 86.55. Permit renewals: general requirements.
(a) A valid, existing permit issued by the Department will carry with it the presumption of successive renewals upon expiration of the term of the permit. Successive renewals will be available only for areas which were specifically approved by the Department on the application for the existing permit.
(b) Permit renewal will not be available for extending the acreage of the operation beyond the boundaries of the permit area approved under the existing permit. Addition of acreage to the operation will be considered a new application. A request for permit revision may accompany a request for renewal and shall be supported with the information required for application as described in this chapter.
(c) Complete applications for renewal of a permit as established in this chapter shall be filed with the Department at least 180 days before the expiration date of the particular permit in question. Renewal applications shall be filed in the format required by the Department. If the permittee provides a written notice to the Department under subsection (i), the notice shall be filed with the Department at least 180 days before the expiration date of the permit.
(d) Applications for renewal shall be subject to the requirements of public notification and participation of § 86.31 (relating to public notices of filing of permit applications), the ownership and control information of § 86.62 (relating to identification of interests) and submission of a compliance history under § 86.63 (relating to compliance information). If there are no changes, updates or corrections to the information required under § § 86.62 and 86.63, the operator need only submit a statement indicating that no change has occurred in the information previously submitted.
(e) Permit renewal shall be for a term not to exceed the period of the original permit.
(f) Unless the Department finds that the permit should not be renewed under subsection (g), it will issue a permit renewal after finding that the requirements of this chapter and that requirements of public participation and notification are satisfied.
(g) A permit will not be renewed if the Department finds one of the following:
(1) The terms and conditions of the existing permit are not being satisfactorily met.
(2) The present mining activities are not in compliance with the environmental protection standards of the Department.
(3) The requested renewal substantially jeopardizes the operator’s continuing ability to comply with the acts, this title and the regulatory program on existing permit areas.
(4) The operator has failed to provide evidence that a bond required to be in effect for the activities will continue in full force and effect for the proposed period of renewal, as well as an additional bond the Department might require.
(5) Revised or updated information required by the Department has not been provided by the applicant.
(6) The permittee has failed to provide evidence of having liability insurance as required by § 86.168 (relating to terms and conditions for liability insurance).
(h) The Department will send copies of its decision to the applicant, persons who filed objections or comments to the renewal and to persons who were parties to an informal conference held on the permit renewal.
(i) If coal extraction, coal preparation and coal refuse disposal will not be conducted, and treatment facilities are not required after the permit expiration date, and if the remaining surface mining activities will consist solely of reclamation, including topsoil replacement and revegetation, the permittee may provide written notice to the Department of the reclamation in lieu of submitting a complete application for renewal and providing the public notice as required by this section. In these circumstances, the Department may renew the permit conditioned upon only reclamation activities occurring and no further coal extraction, coal preparation and coal refuse disposal occurring. Once the permit has been renewed and conditioned upon only reclamation activities occurring, if the permittee wishes to resume coal extraction, coal preparation or coal refuse disposal, a new permit shall be obtained.
(j) If a permittee who has submitted a written notice in accordance with subsection (i) determines prior to the permit expiration date that coal extraction, coal preparation or coal refuse disposal will occur or treatment facilities will be required after the permit expiration date, a renewal application shall be submitted to and approved by the Department prior to coal extraction, coal preparation or coal refuse disposal or land excavation for purposes of coal extraction, coal preparation or coal refuse disposal after the permit expiration date.
Authority The provisions of this § 86.55 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19a); 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 § 86.55 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 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial pages (198803) to (198804).
Cross References This section cited in 25 Pa. Code § 86.31 (relating to public notices of filing of permit applications); 25 Pa. Code § 87.203 (relating to applicability); and 25 Pa. Code § 88.503 (relating to applicability); 25 Pa. Code § 90.303 (relating to applicability).
§ 86.56. Transfer of permit.
(a) A transfer, assignment or sale of the rights granted under a permit may not be made except as provided in this section.
(b) Permits may be reissued in a new name provided that no change of ownership is involved.
(c) The Department may allow a permittee to transfer a permit to another operator if the successor operator:
(1) Is not in violation of the acts, the regulations adopted thereunder or the terms and conditions of permits issued thereunder.
(2) Assumes the liability for reclamation, water pollution, planting and other responsibilities under the law, the rules and regulations and the terms and conditions of the permits from the date of original issuance of the permits.
(3) Has submitted an entirely new application, supporting documentation and complied with public notice requirements of this chapter; or if the successor operator does not wish to submit an entirely new application, the Department will accept an application which incorporates the original application submittals. In such a case the successor operator shall expressly agree to abide by permit conditions, comply with the public participation requirements of this chapter, assume the responsibility for violations which may occur on the area previously affected, and shall furnish the Department with the following:
(i) The identity of the applicant as required in § 86.62 (relating to identification of interests), and the compliance information as required in § 86.63 (relating to compliance information).
(ii) A property map showing the extent to which the mining has been completed under the existing permit.
(iii) The name and address of the existing permittee.
iv) Appropriate bond in the amount specified by the Department in accordance with Subchapter F (relating to bonding and insurance requirements).
(v) Proof of public notice as required by § 86.31 (relating to public notices of filing of permit applications).
(vi) Additional information that will enable the Department to determine that the applicant is able to operate the mine in such a manner as to prevent pollution to waters of this Commonwealth.
Source The provisions of this § 86.56 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 § 86.31 (relating to public notices of filing of permit applications); 25 Pa. Code § 87.203 (relating to applicability); 25 Pa. Code § 88.503 (relating to applicability); and 25 Pa. Code § 90.303 (relating to applicability).
§ 86.57. Reservation of rights.
Department approval of transfer under this chapter, including, but not limited to, permit transfer may not be deemed to limit the original permittee’s responsibility, liability, duty or obligation under law.
Source The provisions of this § 86.57 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. Immediately preceding text appears at serial page (148488).
MINIMUM REQUIREMENTS FOR LEGAL FINANCIAL
COMPLIANCE AND RELATED INFORMATION
§ 86.61. Responsibilities.
As part of each application for a permit, the applicant shall provide relevant information on the ownership of persons who conduct coal mining activities, the compliance status and history of these persons, the ownership and control of the property to be affected by the operations and other information related to the coal mining activities. At a minimum, the information required by this section and § § 86.62—86.65, 86.67 and 86.70 shall be included.
Source The provisions of this § 86.61 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.
§ 86.62. Identification of interests.
(a) Application information. An application shall contain the following information, except that the submission of a social security number is voluntary:
(1) The name, address, telephone number and, as applicable, social security number and employer identification number of the following:
(i) The permit applicant.
(ii) The resident agent of the applicant who will accept service of process.
(iii) The person who will pay the abandoned mine land reclamation fee.
(2) The names and addresses of the owners of record of the following:
(i) Surface and subsurface areas contiguous to any part of the proposed permit area.
(ii) Every legal or equitable owner of record of the coal to be mined and areas to be affected by surface operations and facilities, including legal and equitable owners of the surface area within the proposed permit area.
(iii) The holders of record of a leasehold interest in the coal to be mined and areas to be affected by surface operations and facilities.
(iv) A purchaser of record under a real estate contract of the coal to be mined and the areas to be affected by surface operations and facilities.
(3) The name of the proposed mine and the Mine Safety and Health Administration (MSHA) Identification Number for the mine and all mine-associated structures that require MSHA approval.
(4) A listing of lands contiguous to the proposed permit area for which it is anticipated that individual permits for mining will be sought as a result of interest in lands, options or pending bids on interest held or made by the applicant.
(b) Statement. An application shall contain a statement of whether the applicant is a corporation, partnership, single proprietorship, association or other business entity. For all entities, the application shall contain the following information, as applicable, for each person who owns or controls the applicant under the definition of ‘‘owned or controlled’’ or ‘‘owns or controls’’ in § 86.1 (relating to definitions) except that the submission of a social security number is voluntary:
(1) The name, address, social security number and employer identification number of every:
(i) Officer.
(ii) Partner.
(iii) Associate.
(iv) Shareholder of at least 10% of the voting stock.
(v) Director.
(vi) Other person performing a function similar to director of the applicant.
(vii) Contractor and subcontractor.
(viii) Person having the ability to commit the financial or real property assets or working resources of an entity.
(ix) Person owning or controlling the coal to be mined under the proposed permit 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 the proposed coal mining activity is to be conducted.
(x) Person who has another relationship with the permit applicant which gives the person authority directly or indirectly to determine the manner in which the proposed coal mining activity is to be conducted.
(xi) Person who owns or controls the persons specified in subparagraphs (i)—(x), either directly or indirectly through intermediary entities.
(2) For each person listed in paragraph (1), list the following:
(i) The title of the person’s position.
(ii) The date the position or stock ownership was assumed, and when submitted under § 86.212(c) (relating to Federal minimum enforcement action), the date of departure from the position.
(iii) The percentage of ownership.
(iv) The location in the organizational structure.
(v) The relationship to the applicant.
(c) Related entity information. Include the following:
(1) List the names of entities who, under the definition of ‘‘owned or controlled’’ or ‘‘owns or controls’’ in § 86.1, own or control the applicant or who are owned or controlled by the applicant and provide the following information for each entity:
(i) Identifying numbers, including employer identification number, Federal or State permit numbers, permittee name and address and the MSHA numbers with date of issuance for each permit.
(ii) The application number or other identifier of and the regulatory authority for other issued or pending mining operation permit applications filed by the entity in any State in the United States.
(iii) The name, address, social security number and employer identification number of every officer, partner, associate, principal shareholder, director or other person performing a function similar to director of the entity, including the title of the person’s position and the date the position was assumed.
(2) For each person listed in subsection (b)(1), who is, or has been, associated with another entity as an owner or controller, under the definition of ‘‘owned or controlled’’ or ‘‘owns or controls’’ in § 86.1, within the 5-year period preceding the date of application, provide the following information:
(i) The name of each entity they are, or were, associated with.
(ii) Identifying numbers, including employer identification number, Federal or State permit number and the MSHA number with date of issuance for each permit.
(iii) The application number or other identifier of and the regulatory authority for other issued or pending mining operation permit applications filed by the entity with which the person is affiliated in any state in the United States.
(d) After an applicant is notified that the application is approved, but before the permit is issued, the applicant shall either update, correct or submit a statement that no change has occurred in the information previously submitted under this section.
Authority The provisions of this § 86.62 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 § 86.62 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 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (357475) to (357477).
Cross References This section cited in 25 Pa. Code § 86.37 (relating to criteria for permit approval or denial); 25 Pa. Code § 86.52 (relating to permit revisions); 25 Pa. Code § 86.53 (relating to reporting of new information); 25 Pa. Code § 86.55 (relating to permit renewals: general requirements); 25 Pa. Code § 86.56 (relating to transfer of permit); 25 Pa. Code § 86.61 (relating to responsibilities); 25 Pa. Code § 86.195 (relating to penalties against corporate officers); 25 Pa. Code § 86.212 (relating to Federal minimum enforcement action); 25 Pa. Code § 86.264 (relating to applications for assistance); and 25 Pa. Code § 88.381 (relating to general requirements).
§ 86.63. Compliance information.
(a) An application shall contain the following information:
(1) A statement of whether 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 a related party, in the 5-year period prior to the date of submission of the application, had a Federal or State mining permit suspended or revoked, or forfeited a mining bond or similar security deposited in lieu of bond.
(2) If a suspension, revocation or forfeiture has occurred, a statement of the facts involved, including:
(i) The identification number and date of the issuance of the permit, date and amount of bond or similar security and the Mine Safety and Health Administration (MSHA) number with date of issuance.
(ii) Identification of the authority that suspended or revoked a permit or forfeited a bond and the stated reason for that action.
(iii) The current status of the permit, bond or similar security involved.
(iv) The date, location and type of administrative or judicial proceedings initiated concerning the suspension, revocation or forfeiture including the name of the person to whom the action was issued.
(v) The current status of these proceedings.
(3) For a violation of a provision of the acts, or law, rule or regulation of the United States, or of State law, rule or regulation enacted under Federal law, rule or regulation pertaining to air or water environmental protection incurred in connection with a coal mining activity, a list of the violation notices received by the applicant during the 3-year period preceding the application date and a list of the unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by a coal mining activity owned or controlled by either 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. The application shall also contain a statement regarding each violation notice including the following:
(i) The identification number of the permit or operation and the MSHA number including the date of issuance of the MSHA number.
(ii) The date of issuance of the violation notice with the Federal or State identification number.
(iii) The name of the issuing regulatory authority, department or agency.
(iv) The name of the person to whom the violation notice was issued.
(v) A brief description of the particular violation.
(vi) The date, location and type of administrative or judicial proceedings initiated concerning the violation.
(vii) The current status of the violation.
(viii) The actions taken by the applicant to abate the violation, and proof which is satisfactory to the regulatory authority, department or agency which has jurisdiction over the violation that the violation has been corrected, or is in the process of being corrected.
(b) This section does not limit the Department’s power and authority to require the applicant to provide additional information relating to compliance history which the Department deems relevant to the permit application, whether or not the violations relate to adjudicated proceedings, agreements, consent orders or decrees, or which resulted in a cease order or civil penalty assessment.
(c) After an applicant is notified that the application is approved, but before the permit is issued, the applicant shall update, correct or submit a statement that no change has occurred in the information previously submitted under this section.
Source The provisions of this § 86.63 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 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial page (158710).
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 § 86.52 (relating to permit revisions); 25 Pa. Code § 86.55 (relating to permit renewals: general requirements); 25 Pa. Code § 86.56 (relating to transfer of permit); 25 Pa. Code § 86.61 (relating to responsibilities); 25 Pa. Code § 87.205 (relating to approval or denial); 25 Pa. Code § 88.381 (relating to general requirements); and 25 Pa. Code § 88.505 (relating to approval or denial).
§ 86.64. Right of entry.
(a) An application shall contain a description of the documents upon which the applicant bases his legal right to enter and commence coal mining activities within the permit area and whether that right is the subject of pending court litigation. The description shall identify the documents by type and date of execution, identify the specific lands to which the document pertains and explain the legal rights claimed by the applicant.
(b) Where the private mineral estate to be mined has been severed from the private surface estate, an applicant shall also submit one of the following:
(1) A copy of the written consent of the surface owner for the extraction of coal by surface mining methods.
(2) A copy of the conveyance that expressly grants or reserves the right to extract coal by surface mining methods.
(3) If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under the law of the Commonwealth, the applicant has the legal authority to extract the coal by those methods.
(c) This section will not be construed to provide the Department with the authority to adjudicate property rights disputes.
(d) Except for permit applications based upon leases in existence on January 1, 1964, for bituminous coal surface mines, or leases in existence on January 1, 1972, for anthracite coal surface mining operations or permit applications for coal refuse disposal areas, coal preparation facilities which are not situated on a surface mining permit area and the surface activities of underground mines, the application for a permit shall include, upon a form prepared and furnished by the Department, the written consent of the landowner to enter upon land to be affected by the activities by the operator and by the Commonwealth and of its authorized agents prior to the initiation of surface mining activities, during surface mining activities, and for 5 years after the activities are completed or abandoned for the purpose of reclamation, planting and inspection or for the construction of pollution abatement facilities as deemed necessary by the Department for the purpose of the acts. The forms shall be deemed to be recordable documents and, prior to the initiation of coal mining activities under the permit, the forms shall be recorded by the applicant at the office of the recorder of deeds in the county in which the area to be affected under the permit is situated.
(1) In the case of a lease in existence on January 1, 1964, for bituminous coal surface mines, or leases in existence on January 1, 1972, for anthracite coal surface mining operations, the application for permit shall include, upon a form prescribed and furnished by the Department, a notice of the existence of the lease and a description of the chain of title.
(i) The forms shall be deemed to be recordable documents, and, prior to the initiation of coal mining activities under the permit, the forms shall be recorded by the applicant at the office of the recorder of deeds in the county in which the area to be affected under the permit is situated.
(ii) The forms shall require the information and execution necessary to provide entry upon land to be affected by the operation without constraints pertaining to the assignability, transferability or duration of the consent, except as provided for in the acts. This form may not alter or constrain the contractual agreements and rights of the parties thereto.
(2) In the case of permits for coal refuse disposal areas, coal preparation facilities which are not situated on a surface mining permit area, and underground mines, the applicant shall describe the documents upon which the applicant bases the right to enter upon the land and conduct coal mining activities. The Department will have access to the permitted surface facilities and lands during the mining activities and for 5 years after completion or abandonment of the mining and reclamation activities for the purpose of reclamation, planting and inspection or for the construction of pollution-abatement facilities deemed necessary by the Department. The Department may issue orders to require access. If a landowner fails or refuses to comply with an order to require access, the landowner shall be liable for reasonable legal expenses incurred by the Department in enforcing the order. For purposes of issuing orders and imposing liability for reasonable legal expenses under this subsection, a landowner includes a person holding title to, or having a proprietary interest in, surface or subsurface rights.
(3) The requirements of this subsection are in addition to the information required by subsections (a) and (b).
(e) For the purpose of this section the term ‘‘lease’’ means an agreement in which the surface landowner is the lessor and the applicant is the lessee or the assignee of the lessee. A deed of severance is not a lease.
(f) The information required in this section shall be made part of the permit application prior to approval of the bond under Subchapter F (relating to bonding and insurance requirements).
Source The provisions of this § 86.64 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 May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (219163) to (219164) and (228225).
Notes of Decisions Application Denied
The phrase ‘‘the right to mine and remove said coal’’ in a deed does not ‘‘expressly’’ grant a right to strip mine—any such grant must be inferred. Because the company failed to submit any document meeting this minimum requirement for the grant of a surface mining permit, the Environmental Hearing Board correctly concluded that the Department of Environmental Resources had no choice but to deny the application. Empire Coal Mining and Development, Inc., v. Department of Environmental Resources, 678 A.2d 1218 (Pa. Cmwlth. 1996).
Because the owner of subsurface mineral rights was not required to obtain the surface owner’s consent of entry as part of an application to conduct surface mining operations, the trial court’s failure to order such consent was not an error. A reservation in the deed excepting stripping and coal rights provides implied consent. Sedat, Inc. v. Fisher, 617 A.2d 1, 4 (Pa. Super. 1992); affirmed 701 A.2d 223 (Pa. 1997).
Discovery
Because the Department of Environmental Resources (DER) refused to process petitioner’s application for a mining permit, petitioners subsequently commenced an action to compel the DER to process their application, based on a prior Superior Court decision, and requested the production of two Department memoranda for discovery. The Commonwealth Court determined one memorandum was protected from discovery under the work product doctrine and the other memorandum was immune from discovery on the basis of the attorney-client privilege. Sedat, Inc., v. Department of Environmental Resources, 641 A.2d 1243 (Pa. Cmwlth. 1994).
Cross References This section cited in 25 Pa. Code § 86.37 (relating to criteria for permit approval or denial); 25 Pa. Code § 86.61 (relating to responsibilities); 25 Pa. Code § 86.264 (relating to applications for assistance); and 25 Pa. Code § 86.84 (relating to applications for assistance).
§ 86.65. Relationships to areas designated unsuitable for mining.
(a) The application shall contain a statement of available information on whether the proposed permit area is within an area designated unsuitable for mining or under study for designation in an administrative proceeding under Subchapter D (relating to areas unsuitable for mining).
(b) If the proposed permit area is within an area under study for designation as unsuitable for mining in an administrative proceeding, the applicant shall provide a demonstration that he has made substantial legal and financial commitments in relation to the operation before January 4, 1977.
Source The provisions of this § 86.65 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 § 86.61 (relating to responsibilities).
§ 86.66. [Reserved].
Source The provisions of this § 86.66 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.
§ 86.67. Personal injury and property damage insurance information.
Each application for coal mining activities shall contain proof of liability insurance in accordance with the requirements of § 86.168 (relating to terms and conditions for liability insurance).
Source The provisions of this § 86.67 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 § 86.61 (relating to responsibilities).
§ 86.68. [Reserved].
Source The provisions of this § 86.68 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.
§ 86.69. [Reserved].
Source The provisions of this § 86.69 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.
§ 86.70. Proof of publication.
An application shall contain an intent to publish and a copy of the language to appear in the public notice demonstrating that the advertisement requirement of § 86.31(a) (relating to public notices of filing of permit applications) is in the process of being satisfied, and prior to the issuance of the permit, but no later than 4 weeks after the last date of advertisement, the applicant shall submit a copy of the advertisements as required by § 86.31(a) or the original notarized proof of publication to the Department.
Source The provisions of this § 86.70 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 May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (228226) and (239617).
Cross References This section cited in 25 Pa. Code § 86.61 (relating to responsibilities).
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