RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 77]
Noncoal Mining
[28 Pa.B. 619] The Environmental Quality Board (Board) by this order amends Chapter 77 (relating to noncoal mining). The amendments are the result of the Department of Environmental Protection's (Department) Regulatory Basics Initiative to review and revise regulations which impose disproportionate economic costs, which are obsolete or redundant, which are prescriptive or technology specific and which lack clarity.
This order was adopted by the Board at its meeting of October 21, 1997.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact Roderick A. Fletcher, P. E., Director, Bureau of Mining and Reclamation, P. O. Box 8461, Rachel Carson State Office Building, 5th fl., Harrisburg, PA 17105-8461 (717) 787-5301, or Marc Roda, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464 (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This rulemaking is available electronically through the Department's Web site (http://www.dep.state.pa.us).
C. Statutory Authority
These amendments are adopted under the rulemaking authority of the following acts: section 11(a) of the Noncoal Surface Mining Conservation and Reclamation Act (Noncoal SMCRA) (52 P. S. § 3311(a)); section 5(b) of The Clean Streams Law (35 P. S. § 691.5(b)); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20) which authorizes the Board to adopt regulations necessary for the Department to perform its work.
D. Background and Summary
In August 1995, the Department announced the Regulatory Basics Initiative to revise regulations which impose disproportionate economic costs, which are obsolete or redundant, which are prescriptive or technology specific, and which lack clarity. In 1996, Governor Ridge issued Executive Order 1996-1 which directed executive agencies to conduct a similar review of existing regulations. Under these initiatives the Department solicited public input through a notice in the Pennsylvania Bulletin and the Department's Web site (http://www.dep.state.pa.us). The final amendments in this package are the result of suggestions from the public and the Department's own review of its regulations. Additionally, the Department has inserted, where appropriate, equivalent measures in standard international metric units.
A summary of the revisions to specific sections of the regulations is presented as follows:
§ 77.1. Definitions.
A definition for ''general permit'' has been added to this section.
§ 77.51 License requirement.
Section 77.51(b)(2) and (d) have been revised to cite section 5(e) of the Noncoal SMCRA which contains the insurance requirements for an operator's license.
§ 77.53 Suspension and revocation.
A cross reference has been corrected.
§ 77.54 Fees.
New language acknowledges that Noncoal SMCRA may establish alternate fees.
§ 77.108 Permit for small noncoal operations.
This section has undergone substantive changes. Small noncoal permits issued under this section are now individual permits rather than general permits. The yearly production limit has been raised from 2,000 tons (1,814 metric tons) per operator to 10,000 tons (9,070 metric tons) per site. As a result, individuals holding a large noncoal operator's license can make use of a small permit for a site producing no more than 10,000 tons (9,070 metric tons) a year.
A number of provisions have been added to ensure that the environment as well as the public's safety is protected. The maximum permit size is limited to 5 acres (2.02 hectares). No more than 1 acre of land can be affected and remain unreclaimed unless the Department approves an alternate plan for concurrent reclamation. Any blasting activity will be subject to the same standards applicable to larger noncoal mining operations. Additionally, these permits will be reviewed in accordance with the criteria applicable to larger operations.
Finally, operators are not required to publish in a local newspaper notices of applications for a permit or a bond release. The Department will continue to publish notices of decisions on applications and bond releases in the Pennsylvania Bulletin. The newspaper publication is unnecessary due to the minimal impacts associated with this mining activity. In addition, given the small bond amounts, the cost of requiring publication in newspapers of applications for bond release will make obtaining the bond release meaningless.
§ 77.109. Noncoal exploration activities.
The amendments to this section establish a simpler authorization process and less prescriptive performance standards. Amendments clarify when the Department might request other information the Department deems relevant to assure compliance with the environmental acts and establish a specific time period for regrading and revegetation after reclamation of the exploration site is completed.
§ 77.110. Permit waiver--oil and gas well site development.
The requirements of this section are obsolete and have been replaced with a reference to section 603.1 of the Oil and Gas Act (58 P. S. § 601.603).
§ 77.126. Criteria for permit approval or denial.
The language of this section has been modified for clarity, and to add a requirement that the Department find in writing that a permit application meets the criteria for approval. A requirement that the application must demonstrate that the proposed mining activity will not threaten the existence of endangered or threatened species as determined by Federal and State law has been added. This requirement reflects the Department's current practice of not issuing a permit if a proposed mining activity threatens an endangered species.
§ 77.128. Permit terms.
The reasons for which the Department may grant an extension of time for commencement of mining activities are expanded to include conditions which are beyond the control of the permittee.
§ 77.142. Public notice of permit revision.
This section is revised to identify the specific types of permit revisions which are required to have public notice and, to be consistent with the requirements for surface mining, require public notice for the addition of mineral processing to underground mining activities.
§ 77.144. Transfer of permit.
The amendments replace a general requirement with a reference to specific regulatory requirements.
§ 77.164. Personal injury and property damage insurance information.
Section 77.164 has been revised to cite the specific section of the Noncoal SMCRA which contains the insurance requirements for an operator's license.
§ 77.165. Proof of publication.
This amendment allows the applicant to submit a copy of the weekly newspaper advertisements to the Department as proof of publication.
§ 77.204. Period of liability.
A general reference to Noncoal SMCRA and other environmental acts has been replaced with language from section 9(j) of the Noncoal SMCRA (52 P. S. § 3319(j)) which allows the Department to release a bond in whole or in part if the Department is satisfied that the reclamation covered by the bonds and required by Noncoal SMCRA has been accomplished.
§ 77.205. Bond adjustments.
A new provision requires the Department to notify the permittee, the surety and any person who has a property interest in a collateral bond of any proposed adjustment to the bond. The new requirement also provides the permittee with an opportunity for an informal conference to discuss the bond adjustment prior to any adjustment taking place.
§ 77.231. Terms and conditions for liability insurance.
Section 5(e) of the Noncoal SMCRA which contains the terms and conditions for liability insurance is now referenced by this section.
§ 77.241. Scope.
As amended, this section allows general permits to establish alternate procedures, criteria and schedules for bond release.
§ 77.242. Procedures for seeking release of bond.
The change to this section allows a longer period in which a permittee may submit proof of publication of bond release. In addition, the Department will consider an application for bond release to be incomplete if the proof of public notice is not received within 60 days of the filing of the application.
§ 77.243. Criteria and schedule for release of bond.
A vague standard for initial bond release is replaced by a reference to Chapter 102 (relating to erosion control) which deals with erosion control.
§ 77.401. Responsibilities.
This amendment allows the Department to waive any requirements for information on environmental resources for specific categories of mining if the information is not needed to evaluate potential impacts on the public and environment.
§ 77.403. Description of hydrology and geology--general requirements.
This section has been revised to require an applicant to submit the amount of information necessary to enable the Department to evaluate the impacts for the type of operation being proposed. This amendment also limits the authority of the Department to require modeling or other predictive techniques in a permit application to situations where the proposed mining activity has the potential to adversely impact water supplies, wetlands or waters of this Commonwealth and their affiliated uses.
§ 77.456. Reclamation information.
This amendment requires the timetable for reclamation activities to meet the requirements of § 77.595 (relating to concurrent reclamation).
§ 77.461. Dams, ponds, embankments and impoundments.
This section is revised to require submittal of information for assessing the design and hydrologic impact of a proposed structure only if the information is requested by the Department.
§ 77.502. Signs and markers.
The amendment to this section requires erection of the sign identifying the mining operation within 60 days of permit issuance.
§ 77.503. Casing and sealing of drilled holes.
Subsection (d) dealing with barriers around oil and gas wells is removed because the identical language is found in § 77.504 (relating to distance limitations and areas designated as unsuitable for mining). The phrase ''Prevent to the maximum extent possible'' has been replaced with ''Minimize'' with regard to disturbances to the hydrologic balance.
§ 77.504. Distance limitations and areas designated as unsuitable for mining.
A new subsection (e) provides that waivers to allow surface mining activities within 300 feet (91.44 meters) of an occupied dwelling or commercial or institutional building be knowingly made and be effective against subsequent purchases of the dwelling or building.
§ 77.527. Sedimentation controls.
This amendment allows for sediment controls other than ponds as long as the alternate controls prevent accelerated erosion and sedimentation.
§ 77.562. Preblasting surveys.
The revisions to this section replace a confusing and unenforceable standard for an exemption from the requirement to provide preblasting surveys with precise ground vibration levels in a graph. The amendments also describe how the operator must monitor blasting for compliance with the graph and prohibit additional blasting, if vibration levels exceed the levels in the graph and preblasting surveys have not been offered.
§ 77.564. Surface blasting requirements.
The amended section clearly states that the maximum ground vibration limit does not apply at a structure owned by the permittee.
§ 77.572. Permit line setback.
This section has been rewritten to eliminate confusing language dealing with the distance of 25 feet (7.62 meters) that a highwall must be set back from the boundary of the permitted and bonded area.
§ 77.594. Final slopes.
This section is revised to allow the Department to require underwater safety benches in unconsolidated materials to be sloped at less than 35° from the horizontal if needed for safe exit from the impoundment.
§ 77.595. Concurrent reclamation.
The amendments to this section define more clearly what is required for concurrent reclamation.
Subchapter J. General permits.
This new subchapter authorizes the Department to develop general permits for categories of noncoal mining where the Department determines that the operations within that category are similar in nature and can be adequately regulated utilizing standard specifications and conditions. It describes the nature of a general permit and that the general permit is a substitute for individual permits. Subchapter J establishes the minimum contents of a general permit, the procedures for issuing a general permit and the requirements for operators wishing to register under the general permit. Finally, persons who operate under the general permit are required to maintain a mining operator's license and comply with the terms and conditions of the permit, the regulations and applicable laws.
E. Summary of Comments and Responses on the Proposed Rulemaking
The proposed rulemaking was published at 27 Pa.B. 875 (February 15, 1997). The public comment period expired on April 16, 1997. Public hearings on the proposed rulemaking were held on March 25, 1997, and March 31, 1997.
This document addresses comments received by the Board during the public comment period and from the Independent Regulatory Review Commission (IRRC). Written comments were received from nine commentators and IRRC. A detailed description of comments, along with responses, is contained in the Department's Comment and Response Document which is available from the Bureau of Mining and Reclamation at the address shown in Section B of this Preamble. A summary of the comments and responses on the proposed rulemaking is presented as follows.
§ 77.51. License requirement.
One commentator stated that § 77.51(b)(2) and (d) contain the language ''when required by the act'' and recommends the specific sections of the act be cited or the Board include the specific requirement in the regulation. The Board agrees that the language is vague and has revised § 77.51(b)(2) and (d) to cite section 5(e) of the act.
§ 77.102. Compliance with existing permits.
One commentator is opposed to the language of proposed § 77.102 granting the Department authority to require modification to existing approved and permitted mining and reclamation plans. The commentator stated that the current conditions of the existing permits provide the language and authority for the Department to assure reclamation will be completed. The Board agrees with the comment that the current conditions in permits issued prior to March 17, 1990, provide the language and authority for the Department to assure reclamation will be concurrent and completed. The Department has the authority under the Noncoal SMCRA and the permit conditions to adjust the bond requirements on overburden storage which could be used for concurrent reclamation. The Board has withdrawn the proposed amendments to § 77.102.
One commentator recommended that all quarries be reclaimed and that Federal and State funds be made available for municipalities to reclaim abandoned quarries. The Board agrees with the commentator that quarries should be reclaimed. Reclamation is required for all quarry areas affected since the effective date of the Noncoal SMCRA (January 1, 1972). However, there is no mechanism to provide State or Federal funding to municipalities to reclaim abandoned quarries.
Other commentators suggested that the proposed language be modified or that a cross section reference be made to applicable concurrent reclamation requirements. Another commentator stated that the proposed language might cause premature closing of some mining operations. With the withdrawal of the proposed amendment, other revisions will not be necessary.
§ 77.108. Permit for small noncoal operations.
Five commentators questioned the proposed increase in yearly tonnage for small noncoal operations from 2,000 tons per year per operator to 10,000 tons per year per site. One commentator states that the entities likely to make use of the increased tonnage limits will be new to the mining business, have limited knowledge or experience and may have a negative impact on the environment. Other commentators state that an increase in yearly tonnage limits will result in a larger cumulative environmental impact and could cause significant fish and wildlife impacts. Another commentator recommended the same level of environmental assessment and protection for threatened and endangered species and waters of this Commonwealth and their affiliated uses as presently provided for operations producing more than 2,000 tons per year.
In addition, concerns were expressed that the Department should explain why more stringent permit requirements are no longer needed for operations between 2,000 tons per year and 10,000 tons per year, specifically hydrology and geology descriptions, groundwater and surface water information, operational information, maps and plans required in Subchapters G and H (relating to information on environmental resources; and requirements for operation and reclamation plan). One commentator claimed that the Department had not provided an explanation on how it determined that waiving permit requirements under section 26(a) of the Noncoal SMCRA (52 P. S. § 3326(a)) will have an insignificant affect upon safety and protection of life, health, property and the environment. Proposed § 77.108(f) provided exemptions from newspaper notice for small noncoal permits and bond releases. The commentator recommended that the Department provide newspaper notice or provide documentation of insignificant effects on safety, and the like.
The Board disagrees with the commentators that raising the tonnage limit for small noncoal operations from 2,000 tons (1,814 metric tons) per year to 10,000 tons (9,070 metric tons) per year will have a significant impact on safety and protection of life, health, property and the environment.
Noncoal operators which normally produce 10,000 tons (9,070 metric tons) per year or less are usually mining shale, flagstone, topsoil or sand and gravel. These operations typically do not pump or encounter groundwater. In most cases the noncoal mineral is for local use.
Adverse environmental impacts, including significant impacts on fish and wildlife, will not occur due to the increased tonnage. The area excavated to remove 10,000 tons (9,070 metric tons) of material is very small. A typical shale operation with a 10 foot (3.05 meters) highwall will only need to excavate 0.27 acres (0.11 hectare) to remove 10,000 tons (9,070 metric tons). (See Table 1.)
Table 1
Tonnage vs. Area Affected (Excavation Area)*
5 Foot 10 Foot 20 Foot Production (1.52 meters) (3.05 Meters) (6.10 Meters) Per Year Highwall Highwall Highwall Tons (Metric Tons) Acres (hectare) Acres (hectare) Acres (hectare) 2,000 (1,814) 0.11 (0.04) 0.05 (0.02) 0.03 (0.01) 5,000 (4,535) 0.27 (0.11) 0.14 (0.06) 0.07 (0.03) 10,000 (9,970) 0.54 (0.22) 0.27 (0.11) 0.14 (0.16) *Based on shale with a specific gravity of 2.72. Most other minerals mined in this Commonwealth will have a specific gravity within 10% of shale.
Under § 77.108(e)(4) reclamation must be conducted concurrently with mining operations on a one-for-one basis--1 acre (0.41 hectare) reclaimed for 1 acre (0.41 hectare) affected, unless the operator demonstrates, to the Department's satisfaction, an acceptable alternative for achieving concurrent reclamation. The majority of small noncoal operations which have been permitted since this regulation was adopted (March 17, 1990) have been limited to only 1 acre (0.41 hectare) of unreclaimed area at any time. It would take almost 2 years of excavation, with a 5 foot (1.52 meters) highwall, or approximately 3 1/2 years of excavation, with a 10 foot (3.05 meters) highwall, to produce a 1 acre excavation. The increase in tonnage from 2,000 tons (1,814 metric tons) to 10,000 tons (9,070 metric tons) per year will not increase the typical size of the area of earth disturbance for a small noncoal operation. The operation, in most situations, will only result in the mining operation being developed and reclaimed at a quicker pace. Thus the excavated and unreclaimed area of a small noncoal operation at any given time should not increase and thus not result in any increased impact to life, health, property or the environment from the rise in the tonnage figure.
The Board has retained the proposed 10,000 tons (9,070 metric tons) per year limit for small noncoal operations in § 77.108 for final rulemaking. The Board has added other provisions to limit the potential for increased impacts on the public and the environment. The language in § 77.108(e)(4) has been modified to make it clear that no more than 1 acre (0.41 hectare) of mineral extraction area may be unreclaimed unless an acceptable plan for concurrent reclamation is demonstrated. To contain the overall size of these operations, a new § 77.108(j) is added to limit the maximum permit acreage to 5 acres (2.02 hectare). In addition, subsection (e)(11) has been revised to require all blasting activity to conform to the same standards applicable to larger noncoal sites. These permits will also be reviewed in accordance with the criteria applicable to larger operations, including an assessment of potential impacts on threatened and endangered species.
As explained previously, the Department believes that there will be no significant effect on safety and the protection of life, health, property and the environment due to the increased tonnage limit. Therefore, the Department feels that there is no need to require public notice in a newspaper.
§ 77.109. Noncoal exploration activities.
The commentators recommend that § 77.109(b)(2) be revised to insert the word ''approximate'' before ''...locations of drill holes, exploratory pits, trenches, and excavations'' since it is not possible to project the exact location of each activity and that the area is already defined on the map. The Board agrees with the commentators that the word ''approximate'' should be inserted in § 77.109(b)(2). This section has been revised.
One commentator suggested that the requirement for the purpose of testing in proposed § 77.109(b)(5) be deleted since testing is necessary to determine the economic suitability of the material and needs no justification or explanation. The Board disagrees with the commentator regarding the need to identify the testing methods in § 77.109(b)(5). Different test methods require different amounts of material; therefore, the Department needs to know the test method so that it may determine the size of the exploration area and excavations which will be needed. The proposed language of § 77.109(b)(5) has been retained.
Two commentators suggested that the requirement to ''avoid'' disturbance of wetland areas be replaced by ''minimize'' disturbance of wetland areas in § 77.109(g)(3). The Board disagrees with the commentators regarding § 77.109(g)(3). The replacement of ''Avoid'' with ''Minimize'' would allow disturbance of wetlands which cannot be accomplished without a permit under Chapter 105 (relating to dam safety and waterway management). The phrase ''Avoid disturbance of wetland areas'' has been retained for final rulemaking.
One commentator recommended that the language of § 77.109(b)(7) which allows exploration by drilling methods to proceed 10 days after the information is submitted to the Department, unless otherwise notified by the Department be deleted and more appropriately be included in § 77.109(c). The commentator also recommended that § 77.109(h) provide a specific time period requirement for revegetation. The Board agrees with the commentator that the requirements of § 77.109(b)(7) more appropriately belong in subsection (c). The appropriate language has been transferred. The Board also agrees with the commentator that § 77.109(h) should provide a specific time period for revegetation. This section has been revised to require regrading within 30 days after completion of exploration and to require revegetation within the first planting season after exploration is completed.
§ 77.110. Permit waiver--oil and gas well site development
One commentator recognized that the proposed language for § 77.110 clarifies that activities regulated by the Oil and Gas Act are not regulated as surface mining activities. The Board appreciates the commentator's support on the proposed language. The proposed language has been retained.
§ 77.164. Personal injury and property damage insurance information
One commentator stated that the proposed language ''when required by the act'' in § 77.164 is vague and recommends that the specific sections of the Noncoal SMCRA be cited. The Board agrees and has revised § 77.164 to cite section 5(e) of the Noncoal SMCRA.
§ 77.194. Requirement to file a certification of liability insurance
One commentator stated that the maximum yearly tonnage limit in § 77.194 should be made consistent with other tonnage limits elsewhere in the final-form regulations. They believed that the failure to make a tonnage change to § 77.194 was most likely an oversight. The failure to amend this section was not due to an oversight. The requirement to file a certification of liability insurance for operators who extract more than 2,000 tons (1,814 metric tons) of marketable minerals yearly is set by section 5(e) of the Noncoal SMCRA and cannot be changed by regulation.
§ 77.231. Terms and conditions for liability insurance
One commentator stated that the proposed language ''when required by the act'' in § 77.231(a) is vague and that the specific sections of the act be cited. The Board agrees and has revised § 77.231(a) to cite section 5(e) of the Noncoal SMCRA.
§ 77.403. Description of hydrology and geology--general requirements.
Three commentators suggested that proposed § 77.403(b) be modified to include ''potential to adversely impact waters of this Commonwealth and their affiliated uses'' and to protect wetlands. One commentator also recommended that the phrase ''to the extent necessary for the type of noncoal operation for the Department to evaluate the impacts of the operation'' in § 77.403(a) is not clear as to whether the ''extent necessary'' is relative to the type of noncoal operation or the amount of information required for the description of the geology and hydrology. The Board agrees with the commentators regarding the scope of the Department's authority to require modeling under § 77.403(b). This section has been revised to require modeling if needed to evaluate adverse impacts on waters of this Commonwealth and their affiliated uses, including wetlands. The Board agrees and has revised § 77.403(a) to make it clear that the phrase ''to the extent necessary'' refers to the amount of information necessary to enable the Department to evaluate the impacts of the type of operation.
§ 77.456. Reclamation information
One commentator suggested that the current language of § 77.456 adequately addresses the issue of reclamation timetables for proposed mining operations. With reference to the introductory language of § 77.456, the Board agrees that the current language is adequate. The Board has retained the original introductory language of § 77.456. Nevertheless, the Board believes that the timetable requirements of § 77.456(l) should cross reference § 77.595 in order to make it clear that the operator is to plan for reclamation concurrent with the progress of the proposed operation to the greatest extent possible.
§ 77.504. Distance limitations and areas designated as unsuitable for mining.
One commentator suggested that language should be added stating that sites permitted and bonded prior to these amendments are exempt from subsequent distance limitations of § 77.504(a) established as unsuitable for mining. The Department assumes that the commentator is referring to setback distances for noncoal surface mining other than pit areas permitted and bonded prior to the enactment of the Noncoal SMCRA. Section 11(c) of the Noncoal SMCRA establishes distance limitations where surface mining activities are prohibited. The Noncoal SMCRA does not provide a broad exemption for surface mining operations which were permitted and bonded prior to the effective date of the Noncoal SMCRA. However, there are provisions under section 11(e) of the Noncoal SMCRA whereby the Department may, on a case-by-case basis, grant a waiver to operate within the distance limitations. Section 77.504(a) reflects these standards and cannot go beyond them.
§ 77.562. Preblasting surveys
Two commentators suggested that the following language be added to § 77.562(b): ''If no blasting has taken place within 1-calendar year since the original or subsequent renotifications of the blasting schedule to the public and residents within 1,000 feet, the operator will offer preblast surveys at least 30 days before the resumption of blasting.'' The commentator felt that the word resumption needed a definitive timetable. The term ''resumption of blasting'' as used in the proposed regulation, does not refer to blasting when the operation has no need to conduct blasting for an expanded period of time. It was intended to refer to operations when blasting has been ceased by the Department because the operator did not conduct preblast surveys based on anticipated blasting levels, and subsequently has exceeded those levels. Section 77.562(b) has been rewritten to clearly tie the resumption of the blasting to the requirements of § 77.562(a)(3)(i). The language proposed by the commentators does not address the intent of this section.
§ 77.803. Nature of a general permit; substitution for individual applications and permits.
One commentator recommended that § 77.803 be modified to reflect that not all general permits will require registration by substituting the phrase ''is authorized to operate under'' for ''may only use''. The Board agrees that the phrase ''is authorized to operate under'' is more appropriate and has revised § 77.803(c) accordingly. Upon further reflection the Department has concluded that registration is a necessary tool for implementation of a general permit. Registration will, at a minimum, provide the Department with basic information (such as, applicant, location, and qualifications). In addition the Department will be able to verify compliance with section 8 of the Noncoal SMCRA (32 P. S. § 3308) which requires an operator to demonstrate compliance with the Noncoal SMCRA and the Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.19a).
§ 77.804. Contents of general permits.
One commentator recommended that § 77.804 state that each general permit will specify whether registration is required and when public notice in a newspaper will be required. The commentator also recommended that a time frame be included within which the Department will provide notification of applicant approval when registration is required. The commentator also questioned how the applicant will be notified of approval. The Board agrees that a time period for notification is appropriate and has revised § 77.804(6) to require written notice as to whether the registration has been approved.
The Board agrees that each general permit specify requirements, if any, for public notice. Section 77.804(8) has been modified accordingly. Registration requirements are addressed in the revisions to § 77.806.
§ 77.806. Registration requirements.
One commentator stated that proposed § 77.806(e) prohibits activities under a general permit until ''notice of Department approval of registration'' while other general permit programs administrated by the Department only require the applicant to register by providing specific information to the Department. The commentator also noted that the type of ''notice of Department approval'' is not specified nor is there a specific time for the Department to act on a request for registration.
The Board disagrees with the commentator that notice of approval of registration should not be required. The Department believes that notification is necessary to afford the Department the opportunity to ensure that the applicant is qualified to operate under the general permit and to allow for a compliance check. There are other Department General Permits which also require review and approval of registration (such as, NPDES General Permits).
Another commentator recommended that the word ''applications'' replace ''requests'' in § 77.806(c) to clarify registration requirements. The commentator also recommended that § 77.806(d), which deals primarily with initial requests for registration, would be more appropriate as a new § 77.807 titled ''Change of Ownership'' with proposed § 77.807 renumbered as § 77.808. The Board agrees with the commentator that § 77.806(d) is the only subsection that deals with a revision of an approved activity and would be more appropriate as a separate section. Section 77.806(d) has been deleted and the language restated as a new § 77.807 entitled ''change of ownership.'' Section 77.807 (relating to compliance with permit conditions, regulations and laws) has been renumbered as § 77.808.
Subchapter J. General Permits--General Comment
One commentator opposed the implementation of this subchapter unless more specific limitations are imposed under general permits. These may include length of permit, maximum tonnage allowed, area of disturbance, bond rates, reclamation requirements and blasting. The commentator is concerned that the proposed wording will constitute a double standard between operators who are operating under a small or large noncoal permit and those who would operate under a general permit. The Board disagrees with the commentator regarding specifics on limitations. The types of limitations suggested by the commentator will be addressed, when appropriate, within proposed individual general permits. When a general permit would apply to activities currently covered by an existing permit there is nothing in the regulations which would preclude the operator from obtaining a registration under the general permit.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the amendments.
Benefits
These amendments revise noncoal mining regulations which impose disproportionate economic costs, regulations which are obsolete or are redundant, regulations which are prescriptive or technology specific, and regulations which lack clarity. The noncoal mining industry, the Department and the public will benefit from these amendments.
Benefits to the general public cannot be quantified. They include more timely reclamation of highwalls which eliminates potential safety hazards and better documentation of Department decisions to issue permits through the requirement for the Department to provide written findings.
The benefits to the regulated community will primarily be a savings in permitting costs as follows:
Savings/ Site/yr. site Savings --Less prescriptive permit application requirements based on type of operation 20 $2,000 $40,000 --General Permit compared to large noncoal permit application 10 $4,000 $40,000 --Large noncoal operation obtaining small noncoal permits 10 $3,000 $30,000 The Department will benefit by a savings through a reduction in the time and effort to review permit applications as follows:
--Reduced review times with general permits:
10 large 110 hrs. $15/hr. $16,500 $16,500 5 small 5 hrs. $15/hr. $1,500 $1,500 --Review of hydrology/geology information based on reduced level of detail for certain types of noncoal operations.
--Large noncoal operations obtaining small noncoal permits.
Compliance Costs
The amendments will impose no additional compliance costs on the regulated community.
Compliance Assistance Plan
Since noncoal mining regulations are an established program in this Commonwealth, compliance assistance will be limited to an effort to inform the industry of the specific changes in the program. This can be accomplished by mailing fact sheets directly to mine operators. If necessary, regional roundtable meetings with the industry will be arranged.
Paperwork Requirements
The amendments will result in decreased paperwork for the regulated community and the Department.
G. Sunset Review
These amendments will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the amendments effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 4, 1997, the Department submitted a copy of the proposed rulemaking to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments, as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC and the public. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committees on November 25, 1997. IRRC met on December 4, 1997, and approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
I. Findings of the Board
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These amendments do not enlarge the purpose of the proposal published at 27 Pa.B. 875.
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
J. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 77, are amended by amending §§ 77.1, 77.51, 77.53, 77.54, 77.108--77.110, 77.126, 77.128, 77.142, 77.144, 77.164, 77.165, 77.204, 77.205, 77.231, 77.241--77.243, 77.401, 77.403, 77.456, 77.461, 77.502--77.504, 77.527, 77.562, 77.564, 77.572, 77.594 and 77.595 and by adding §§ 77.801--77.807 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(Editor's note: The proposal to amend § 77.102 (relating to compliance with existing permits), included in the proposal at 27 Pa.B. 875, has been withdrawn by the Board.)
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6878 (December 27, 1997).)
Fiscal Note: Fiscal Note 7-303 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF
NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 77. NONCOAL MINING
Subchapter A. GENERAL PROVISIONS § 77.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.
* * * * * General permit--A permit that is used for any category of noncoal surface mining activities authorized by the act if the Department determines that the activities in the category are similar in nature and can be adequately regulated utilizing standardized specifications and conditions. A general permit shall specify the design, operating and monitoring requirements necessary to adequately protect life, health, property and the environment and under which the surface mining activities may be conducted.
* * * * *
Subchapter B. SURFACE MINING OPERATOR'S LICENSE § 77.51. License requirement.
(a) Operator's license required. A person who conducts noncoal surface mining as an operator within this Commonwealth shall first obtain a noncoal surface mining operator's license from the Department.
(b) Noncoal surface mining operator's license application. Application for license shall be made in writing on forms prepared and furnished by the Department and contain information pertaining to:
(1) Identification of ownership.
(2) Public liability insurance when required by section 5(e) of the act (52 P. S. § 3305(e)).
(3) Compliance information.
(c) Identification of ownership. The application shall indicate whether the applicant is a corporation, partnership, single proprietorship, association or other business entity. For business entities other than single proprietorships, the application shall contain the following information if applicable:
(1) The name and address of the applicant, including partners, associates, officers, parent or subsidiary corporations.
(2) The names under which an applicant listed in paragraph (1) previously operated a mining operation in this Commonwealth within 5 years preceding the date of application.
(d) Public liability insurance. When required by section 5(e) of the act, the applicant shall provide a certificate of insurance for the term of the license covering surface mining activities of the applicant in this Commonwealth under § 77.231 (relating to terms and conditions for liability insurance).
(e) Refusal to issue or renew license. The Department will not issue a noncoal surface mining operator's license or renew or amend a license if it finds, after investigation and an opportunity for informal hearing, that a person, partner, associate, officer, parent corporation or subsidiary corporation has been subject to a bond forfeiture under the act and environmental acts or has failed to comply with an adjudicated proceeding, cessation order, consent order and agreement or decree under the act and environmental acts. The Department will not renew a license for an operator who uses the provisions for payment in lieu of bond unless the operator submits his annual payment with the license renewal application. A person who opposes the Department's decision on issuance or renewal of a license has the burden of proof.
(f) License renewal requirements.
(1) A person licensed as a noncoal surface mining operator shall renew the license annually according to the schedule established by the Department.
(2) Notice of license renewal and filing of an application for license renewal shall conform to the following:
(i) The Department will notify the licensee in writing at least 60 days prior to the expiration of the current license to renew the license. The applicant shall be responsible for filing a license renewal application prior to the expiration of the current license.
(ii) If the Department does not intend to renew a license, the Department will notify the licensee, a minimum of 60 days prior to expiration of the license. This section does not prevent the Department from not renewing the license for violations occurring or continuing within this 60-day period if the Department provides an opportunity for an informal hearing.
§ 77.53. Suspension and revocation.
(a) The Department may suspend or revoke a license for a reason listed in § 77.51(e) (relating to license requirement).
(b) If the Department intends to revoke or suspend a license, it will provide an opportunity for an informal hearing before suspending or revoking the license. The Department will notify the licensee of its intent to revoke or suspend a license and of the opportunity for an informal hearing at least 15 days prior to revoking or suspending the license unless the Department determines that a shorter period is in the public interest.
§ 77.54. Fees.
Unless otherwise established by the act, the following license fees apply:
(1) The initial and annual license renewal fee for persons mining 2,000 tons (1,814 metric tons) or less of marketable noncoal minerals is $50.
(2) The initial application fee for persons mining more than 2,000 marketable tons of noncoal minerals per year is $500, and the annual renewal license fee is $300.
Subchapter C. PERMITS AND PERMIT APPLICATIONS
GENERAL § 77.108. Permit for small noncoal operations.
(a) A person who intends to conduct noncoal surface mining activities from which the total weight of mineral mined per year is less than 10,000 tons (9,070 metric tons), prior to conducting the activities, shall apply in writing for a small noncoal permit on forms furnished by the Department.
(b) In lieu of the application requirements of this subchapter and Subchapters G and H (relating to information on environmental resources; and requirements for operation and reclamation plan), an application for a small noncoal permit shall include the following:
* * * * * (3) Information and documents required by § 77.163 (relating to right of entry).
* * * * * (9) A United States Geological Survey topographical map or aerial photograph approved by the Department with the proposed permit area outlined.
* * * * * (11) A notarized statement signed by the applicant stating that the yearly production from the proposed mining activity will not exceed 10,000 tons (9,070 metric tons).
(12) Other information the Department deems relevant.
* * * * * (d) A person operating under this section shall comply with Subchapter B (relating to surface mining operator's license).
(e) In lieu of the requirements of Subchapter I (relating to environmental protection performance standards), this permit has the following conditions:
* * * * * (3) The operating face of a bench may not exceed a height of 25 feet (7.62 meters). Multiple benching shall be developed as necessary.
(4) Reclamation shall be conducted concurrently with mining operations on a one for one basis--1 acre (0.41 hectare) reclaimed for each 1 acre (0.41 hectare) of area affected, with no more than 1 acre (0.41 hectare) of mineral extraction area unreclaimed at any time, unless the operator demonstrates, to the Department's satisfaction, acceptable alternate concurrent reclamation.
* * * * * (7) The permittee shall identify this operation during its lifetime by constructing and maintaining a weather resistant sign with a minimum size of 2 feet by 3 feet (60.96 centimeters by 91.44 centimeters) to be located immediately adjacent to the closest public highway, from which it shall be clearly visible, at the junction of that public highway with the access road to the operation. The sign shall be painted with a light background and show, in a contrasting color, the name of the permittee and the permit number under which the operation is being conducted. The letters and numbers shall be a minimum height of 1 1/2 inches (3.81 centimeters).
(8) Topsoil, as needed for reclamation, shall be conserved onsite for replacement on affected areas upon completion of mining and prior to revegetation. Topsoil in excess of that needed for reclamation, as demonstrated by the applicant, may be removed from the site.
(9) The permittee shall comply with the distance requirements of § 77.504 (relating to distance limitations and areas designated as unsuitable for mining).
(10) The permittee shall comply with other conditions the Department may require to assure compliance with the act and this title.
(11) Blasting shall conform to the requirements of §§ 77.561--77.565 (relating to use of explosives). If the blasting is conducted at a scale distance of 70 or greater, the blasting does not have to be seismographed and the permittee does not have to comply with § 77.562 and (relating to preblasting surveys and public notice of blasting schedule). Scale distance (Ds) shall be determined by the formula W = (D/Ds)2 where W equals the maximum weight of explosives, in pounds, to be detonated in any 8 millisecond period or greater and D equals the distance, in feet, from the blast to the nearest dwelling, school, church, commercial or institutional building.
(f) The Department will publish its decision on a small noncoal permit application and a final bond release in the Pennsylvania Bulletin. Permit applications and bond releases under this section are exempt from the newspaper public notice requirements of section 10(a) of the act (52 P. S. § 3310(a)).
(g) It is unlawful for a person who has obtained a small noncoal surface mining permit to mine more than 10,000 tons (9,070 metric tons) in a 1-year period from a permit issued under this section.
(h) A person operating under a small noncoal permit shall submit a bond in accordance with the bond rates established by the Department. The minimum bond for a small noncoal permit is $1,000.
(i) Bond release shall be based on the reclamation requirements under this section in lieu of §§ 77.241--77.243 (relating to release of bonds).
(j) The maximum permit area is 5 acres (2.02 hectares) for areas authorized for mining under this section.
(k) Small noncoal mining permits or general permit authorizations issued prior to January 31, 1998, remain valid if all mining activities remain within the area covered by the permit as of January 31, 1998, and if the total weight of mineral mined per year does not exceed 2,000 tons (1,814 metric tons).
(l) The Department may by agreement delegate to a conservation district one or more of its regulatory functions under the act for surface mining operators licensed to mine less than 2,000 tons (1,814 metric tons) of marketable minerals per year. A conservation district acting under a delegation agreement has the same powers and duties otherwise vested in the Department to implement the act to the extent delegated by agreement.
(m) An application for a small noncoal permit shall be reviewed, approved or denied in accordance with § 77.126(a)(1)--(8) and (10) (relating to criteria for permit approval or denial).
§ 77.109. Noncoal exploration activities.
(a) A person who intends to conduct noncoal exploration outside an existing permit shall file with the Department a written notice of intention to explore for each exploration area at least 10 days prior to the start of exploration activities on forms provided by the Department.
(b) The notice shall include:
(1) The name, address and telephone number of the person seeking to explore.
(2) A map, at a scale of 1:24,000, of the exploration area showing the extent of the exploration area and approximate locations of drill holes, exploratory pits, trenches and excavations.
(3) A statement of the period of intended exploration.
(4) The method of exploration and types of equipment to be used.
(5) The purpose of testing.
(6) The amount of mineral needed for testing (if exploration is by test pit, trench or excavation).
(c) Exploration by drilling methods may proceed 10 days after the notice of intent to explore form is submitted to the Department unless notified otherwise by the Department to provide other information to assure compliance with the environmental acts (for example--the location of access roads) or if the area is located within the distance limitations of § 77.504 (relating to distance limitations and areas designated unsuitable for mining).
(d) The Department will, except as otherwise provided in § 77.124 (relating to public availability of information in permit applications), place the notices on public file and make them available for public inspection and copying during regular office hours at the established fee.
(e) A person who intends to conduct noncoal exploration operations in which noncoal minerals will be removed shall, prior to conducting the exploration, obtain a permit under this chapter. Prior to removal of minerals, the Department may waive the requirement for the permit to enable the testing and analysis of noncoal properties.
(f) A person who conducts noncoal exploration activities will observe the distance limitations under § 77.504 (relating to distance limitations and areas designated unsuitable for mining).
(g) Exploration activities shall be conducted to accomplish the following:
(1) To minimize environmental impacts on roadways and vegetation.
(2) To provide erosion controls for excavated areas, including access roads, in accordance with Chapter 102 (relating to erosion control).
(3) To avoid disturbance of wetland areas.
(h) The areas affected by the noncoal exploration shall be graded to approximate original contour when possible or restored to a slope not to exceed 35° unless approved by the Department under § 77.594(2)(v) (relating to final slopes) within 30 days after completion of exploration, and will contain no depressions which will impound water. Drill holes shall be sealed under § 77.503 (relating to casing and sealing of drilled holes). The affected areas shall be revegetated within the first planting season after completion of exploration.
(i) Noncoal exploration activities shall be subject to the applicable inspection and enforcement provisions of the Department, and Subchapters E and F (relating to civil penalties for noncoal mining activities; and enforcement and inspection).
(j) Information will be made available to the public as follows.
(1) Except as provided in paragraph (2), information submitted to the Department under this section will be made available for public inspection and copying at the appropriate district mining office.
(2) Information which pertains only to the analysis of the chemical and physical properties of the mineral (except information regarding the mineral or elemental content that is potentially toxic to the environment) will be kept confidential and will not be made a matter of public record.
§ 77.110. Permit waiver--oil and gas well site development.
This chapter does not apply to a borrow area where minerals are extracted solely for the purpose of oil and gas well development, including access road construction, if the owner or operator of the well meets section 603.1 of the Oil and Gas Act (58 P. S. § 601.603).
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