Subchapter C. SMALL OPERATOR ASSISTANCE PROGRAM
Sec.
86.80. Definitions.
86.81. Program services.
86.82. Responsibilities.
86.83. Eligibility for assistance.
86.84. Applications for assistance.
86.85. Application approval and notice.
86.86. [Reserved].
86.87. Determination of data requirements.
86.88. [Reserved].
86.89. [Reserved].
86.90. Public records; evidence.
86.91. [Reserved].
86.92. Basic qualifications.
86.93. Assistance funding.
86.94. Applicant liability.
86.95. [Reserved].
Cross References This subchapter cited in 25 Pa. Code § 88.31 (relating to maps and plans).
§ 86.80. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Qualified consultant and qualified laboratory—A designated public agency, private consulting firm, institution or analytical laboratory which can provide the required services under this program in accordance with § 86.92 (relating to basic qualifications).
Source The provisions of this § 86.80 adopted January 2, 1998, effective January 3, 1998, 28 Pa.B. 15.
§ 86.81. Program services.
(a) To the extent that funds are available in the Small Operators’ Assistance Fund, the Department will:
(1) Review requests for assistance.
(2) Select and pay a qualified consultant to:
(i) Determine for the applicant the probable hydrologic consequences of the coal mining activities both on and off the proposed permit area in accordance with either § 87.69, § 88.49 or § 89.36 (relating to protection of the hydrologic balance).
(ii) Provide drilling services and prepare a statement of the results of test borings or core samplings in accordance with either § 87.44, § 88.24 or § 89.33 (relating to geology description; and geology).
(iii) Provide a description of the existing resources within and adjacent to the proposed permit area in accordance with either one of the following:
(A) Sections 87.41—87.47, 87.50 and 87.54.
(B) Sections 88.21—88.27 and 88.31.
(C) Sections 89.33—89.36, 89.38 and 89.74.
(iv) Provide a detailed description, to include maps, plans and cross sections, of the proposed coal mining activities showing the manner in which the proposed permit area will be mined and reclaimed in accordance with one of the following:
(A) Sections 87.69, 87.77 and 87.84 (relating to protection of hydrologic balance; protection of public parks and historic places; and, fish and wildlife protection and enhancement plan).
(B) Sections 88.49, 88.56 and 88.62 (relating to protection of hydrologic balance; protection of public parks and historic places; and fish and wildlife protection and enhancement plan).
(C) Sections 89.33—89.36, 89.38 and 89.74.
(v) Provide preblast surveys and a statement of the results of preblast surveys required in accordance with § 87.125 (relating to use of explosives: preblasting survey).
(3) Collect and provide general hydrologic information on the basin or subbasin areas within which the anticipated mining will occur. The information provided shall be limited to that required to relate the basin or subbasin hydrology to the hydrology of the proposed permit area.
(b) If funds allocated by the Department for the payment of services provided to the applicant are less than those required to pay for the services, the applicant is responsible for costs exceeding the amount of funds allocated for the services provided to the applicant.
Source The provisions of this § 86.81 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial pages (206675) and (198815).
Cross References This section cited in 25 Pa. Code § 86.85 (relating to application approval).
§ 86.82. Responsibilities.
(a) The Department will:
(1) Develop and maintain a list of qualified consultants and qualified laboratories, and select and pay consultants for services rendered.
(2) Conduct periodic onsite evaluations of the program activities with the appropriate small operator.
(3) Participate with the Office of Surface Mining Reclamation and Enforcement in data coordination activities with the United States Geological Survey, the EPA and other appropriate agencies or institutions.
(4) Participate with the Office of Surface Mining Reclamation and Enforcement in auditing the applicant’s statement of eligibility.
(b) The Department and the Office of Surface Mining Reclamation and Enforcement will insure that applicable equal opportunity in employment provisions are included within contracts or other procurement documents.
Source The provisions of this § 86.82 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial page (198815).
Cross References This section cited in 25 Pa. Code § 86.92 (relating to basic qualifications).
§ 86.83. Eligibility for assistance.
(a) An applicant is eligible for assistance if the applicant:
(1) Intends to apply for a permit under this chapter.
(2) Establishes that the probable total attributed annual production from all locations on which the applicant is issued the mining activities permit will not exceed 300,000 tons.
(3) Is not restricted from receiving a permit.
(b) Production attributed to the applicant shall include the following:
(1) Coal produced by operations beneficially owned entirely by the applicant or controlled, by reason of ownership, direction of the management or in another manner, by the applicant.
(2) The pro rata share, based upon the percentage of beneficial ownership of coal produced by operations in which the applicant owns a 10% interest or more.
(3) Coal produced by persons who own 10% or more of the applicant or who directly or indirectly control the applicant by reason of stock ownership, direction of the management or in another manner.
(4) The pro rata share of coal produced by operations owned or controlled by the person who owns or controls the applicant.
(5) Coal produced by operations owned by members of the applicant’s family and relatives unless the applicant demonstrates that there is no direct or indirect business relationship among them.
(c) For the purpose of this subchapter, measurement of coal production will be based on the production reported to the office of surface mining reclamation and enforcement for the purpose of the reclamation fee payment.
Source The provisions of this § 86.83 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 April 23, 1993, effective April 24, 1993, 23 Pa.B. 1946; amended September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial page (198816).
§ 86.84. Applications for assistance.
(a) An application for assistance shall contain the following information:
(1) A statement of intent to file a permit application under this chapter.
(2) The names and addresses of:
(i) The intended permit applicant.
(ii) The intended operator, if different from the applicant.
(3) A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant under this section. For each location, the schedule shall include:
(i) The name under which coal is or will be mined.
(ii) The permit number and Mine Safety and Health Administration identification number, if available.
(iii) The actual coal production for the year preceding the application for assistance and that portion of the production attributed to the applicant.
(iv) The estimated coal production for each year of the proposed permit and that portion attributed to the applicant.
(4) A description of:
(i) The method of coal mining activities proposed.
(ii) The anticipated starting and termination dates of mining operations.
(iii) The number of acres of land to be affected by the proposed mining.
(iv) A general statement on the probable depth and thickness of the coal resource.
(5) A United States Geological Survey topographic map of 1:24,000 scale or larger which clearly shows:
(i) The area of land to be affected and the natural drainage above and below the affected area.
(ii) The names of property owners within the area to be affected and of adjacent lands.
(iii) The location of existing structures and developed water sources within the area to be affected and of adjacent lands.
(iv) The location of existing and proposed test boring or core samples and the location and extent of known working of any underground mines.
(6) Copies of documents which show that the legal right of entry necessary to meet the provisions of § 86.64 (relating to right of entry) have been obtained by the applicant.
(7) The mine operator’s license number.
(b) The application shall be attested by a notary public or district justice.
Authority The provisions of this § 86.84 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 § 86.84 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 15; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (239620) to (239621).
§ 86.85. Application approval and notice.
(a) If the Department finds the applicant eligible for assistance and does not have information readily available which would preclude issuance of a permit to the applicant for mining in the area proposed, it will:
(1) Determine the minimum data requirements necessary to meet the provisions of § 86.81 (relating to program services).
(2) Select the services of one or more qualified consultants to perform the required work.
(3) Provide the applicant a copy of the contract or other appropriate work order for the qualified consultants’ services and the consultants’ report within 15 days of the Department’s final approval.
(b) The granting of assistance under this program does not imply that the Department will approve a subsequent permit application.
(c) Within 45 days of receipt of a complete application for assistance, the Department will inform the applicant in writing if the application is denied and will state the reason for denial.
Source The provisions of this § 86.85 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial pages (198817) to (198818).
§ 86.86. [Reserved].
Source The provisions of this § 86.86 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; reserved January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial page (158719).
§ 86.87. Determination of data requirements.
(a) The Department will determine the data collection requirements to meet the objectives of the program for each applicant or group of applicants. Development of information on environmental resources, operation plans and reclamation plans may proceed concurrently with data collection and analyses required for the determination of the probable hydrologic consequences of the proposed mining activities if specifically authorized by the Department in an approved work order.
(b) The data requirements will be based on:
(1) The extent of currently available hydrologic and core analysis data for the applicable area provided by the Department.
(2) The data collection and analysis guidelines developed and provided by the Department.
Source The provisions of this § 86.87 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial page (198818).
§ 86.88. [Reserved].
Source The provisions of this § 86.88 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; reserved September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124. Immediately preceding text appears at serial page (158720).
§ 86.89. [Reserved].
Source The provisions of this § 86.89 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; reserved September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124. Immediately preceding text appears at serial pages (158720) to (158721).
§ 86.90. Public records; evidence.
Data collected under this program shall be made available to all interested persons, except that information which pertains only to the analysis of the chemical and physical properties of the coal—excepting information regarding such mineral or elemental content which is potentially toxic in the environment—shall be kept confidential and not made a matter of public record.
Source The provisions of this § 86.90 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.
§ 86.91. [Reserved].
Source The provisions of this § 86.91 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 September 29, 1995, effetive September 30, 1995, 25 Pa.B. 4124; reserved January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial page (198819).
§ 86.92. Basic qualifications.
(a) To be designated as a qualified consultant or qualified laboratory, the consultant or laboratory shall demonstrate that it:
(1) Is staffed with experienced, professional personnel in the fields of hydrology, mining engineering, aquatic biology, geology or chemistry applicable to the work to be performed as a water laboratory, overburden laboratory or consulting firm.
(2) Is capable of collecting necessary field data and samples.
(3) Has adequate space for material preparation, cleaning and sterilizing necessary equipment, stationary equipment, storage and space to accommodate periods of peak work loads.
(4) Meets the requirements of the Occupational Safety and Health Act of 1970, the act of December 29, 1970 (Pub.L. No. 91-596) (84 Stat. 1590).
(5) Has the financial capability and business organization necessary to perform the work required.
(6) Has analytical, monitoring and measuring equipment capable of meeting the applicable standards and methods contained in:
(i) The current edition of Standard Methods of the Examination of Water and Waste Water.
(ii) Methods of Chemical Analysis of Water and Wastes, as amended. The standards contained therein are incorporated by reference. Available from ORD Publications, CERTI, EPA, Cincinatti, Ohio 45278 March 1983 (EPA-600/4-79-020).
(iii) The EPA standards as described in 40 CFR Part 136 (relating to guidelines establishing test procedures for the analysis of pollutants).
(iv) The Department’s Overburden Sampling and Testing Manual.
(7) Has the capability of making hydrologic field measurements and analytical laboratory determinations by acceptable hydrologic engineering or analytical methods or by appropriate methods or guidelines for data acquisition recommended by the Department.
(b) The qualified consultant shall be capable of performing the services under § 86.81 (relating to program services). Subcontractors may be used to provide the s ervices required if the use is defined in the application for designation and approved by the Department.
(c) Persons who desire to be included in the list of qualified consultants or qualified laboratories established by the Department under § 86.82 (relating to responsibilities) shall apply to the Department and provide the information necessary to establish the qualifications required by this section.
Source The provisions of this § 86.92 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial page (198820).
Cross References This section cited in 25 Pa. Code § 86.80 (relating to definitions).
§ 86.93. Assistance funding.
(a) Funds authorized by the Office of Surface Mining Reclamation and Enforcement for this program may not be used to cover administrative costs of the Department.
(b) The Department will, to the extent practicable, establish a formula for allocating funds among eligible small operators if available funds are less than those required to provide the services under the program. This formula shall include factors such as the applicant’s:
(1) Anticipated date of filing a permit application.
(2) Anticipated date for commencing mining.
(3) Performance history.
Source The provisions of this § 86.93 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124. Immediately preceding text appears at serial page (178885).
§ 86.94. Applicant liability.
(a) The applicant shall reimburse the Department for the cost of the consultant and laboratory services performed under this subchapter, including interest from the date the Department requests reimbursement, if the applicant does one of the following:
(1) Submits false information.
(2) Fails to submit a complete permit application within 1 year from the date of receipt of the approved consultant report, unless the report indicates that the application is not approvable for technical reasons beyond the applicant’s control.
(3) Fails to commence mining within 3 years after obtaining a permit.
(4) The applicant’s actual and attributed annual production of coal exceeds 300,000 tons during the 12-month period immediately following the date on which the applicant is issued the mining activities permit.
(5) Sells, transfers or assigns the permit to another person and the transferee’s total actual and attributed production exceeds the 300,000-ton annual production limit during the 12-month period immediately following the date on which the applicant is issued the mining activities permit. Under this paragraph, the applicant and its successor are jointly and severally obligated to reimburse the Department.
(6) Fails to provide the services required to complete the application.
(b) If the applicant violates this section, licenses and permits may be suspended or revoked by the Department.
(c) The Department may waive the reimbursement liability requirements of subsection (a)(2) or (3) if the applicant has demonstrated a good faith effort to comply with these provisions. For the purpose of this determination, ‘‘good faith’’ means that the applicant has promptly notified the Department of the conditions and circumstances which have precluded the completion of the Small Operator Assistance Program Project, the submission of a mine permit application or the initiation of mining within the prescribed time period and the circumstances which preclude compliance with the liability requirements include one of the following:
(1) The consultant report indicated that mining could have potentially adverse environmental impacts.
(2) The application for a mining permit is denied as a result of potentially adverse environmental impacts or other technical reasons beyond the applicant’s control.
(3) Other factors are identified which would preclude mining of the site, and the applicant does not intend to file a permit application.
Source The provisions of this § 86.94 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 April 23, 1993, effective April 24, 1993, 23 Pa.B. 1946; amended September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial pages (198821) to (198822).
§ 86.95. [Reserved].
Source The provisions of this § 86.95 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 September 29, 1995, effective September 30, 1995, 25 Pa.B. 4124; reserved January 2, 1998, effective January 3, 1998, 28 Pa.B. 15. Immediately preceding text appears at serial page (198822).
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