RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 86]
Surface and Underground Coal Mining
[29 Pa.B. 5289] The Environmental Quality Board (Board) by this order amends Chapter 86 (relating to surface and underground coal mining: general). The amendments are the result of the Department of Environmental Protection's (Department) Regulatory Basics Initiative and Executive Order 1996-1, which directed the Department to revise regulations which are more stringent than Federal law, unless there is a compelling State interest; lack clarity; or which impose disproportionate costs on the regulated community.
This order was adopted by the Board at its meeting of July 20, 1999.
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 David C. Hogeman, Chief, Division of Environmental Analysis and Support, Bureau of Mining and Reclamation, Rachel Carson State Office Building, P. O. Box 8461, Harrisburg, PA 17105-8461, (717) 787-4761, or Joseph Pizarchik, Assistant Director, Bureau of Regulatory Counsel, Rachel Carson State Office Building, P. O. Box 8464, 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 order is available electronically through the Department's website (http://www.dep.state.pa.us).
C. Statutory Authority
These amendments are proposed under the authority of the following provisions of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. §§ 1396.1--1396.19a): section 4.2(a) of the SMCRA (52 P. S. § 1396.4b(a)), which provides general rulemaking authority; section 4.5 of the SMCRA (52 P. S. § 1396.4e), which provides for the designation of an area as unsuitable for all or certain types of surface mining operations; the Coal Refuse Disposal Control Act (52 P. S. §§ 30.51--30.66) (act): section 3.2(a) of the act (52 P. S. § 30.53b(a)), which authorizes the adoption of rules and regulations; section 6.1 of the act (52 P. S. § 30.56a), which provides for the designation of an area as unsuitable for all or certain types of coal refuse disposal operations; The Clean Streams Law (CSL) (35 P. S. §§ 691.1--691.1001): section 5 of the CSL (35 P. S. § 691.5), which authorizes the adoption of rules and regulations, section 315(h)--(o) of the CSL (35 P. S. § 691.315(h)--(o)), which provides for the designation of an area as unsuitable for all or certain types of surface mining operations; and sections 1920-A and 1930-A of The Administrative Code of 1929 (71 P. S. §§ 510-20 and 510-30), which authorize the adoption of regulations necessary for the Department to perform its work and which provide that it is the Board's duty to review petitions for, and to designate, areas as unsuitable for mining.
D. Background and Purpose
These amendments are the result of the Department's Regulatory Basics Initiative, which was initiated in August 1995, and Governor Ridge's Executive Order 1996-1 dated February 6, 1996. Under both of these initiatives, the Department was directed to review its existing regulations to analyze which regulations were more stringent than Federal law and regulations, lacked clarity, and imposed disproportionate costs on the regulated community. The Department solicited public input concerning its existing regulations. Comments received by the Department, and the Department's own review of its existing regulations, have identified a number of provisions which need to be revised. These are contained in this rulemaking package. Regulations that are more stringent than Federal requirements are proposed for revision, unless justified by a compelling and articulable interest of the Commonwealth or required by State law.
As a result of this review, the Department developed two alternative proposals for consideration and presented them to the Mining and Reclamation Advisory Board (MRAB) at its meeting of October 3, 1996.
The first of these alternatives, in addition to providing clarity and changing those regulations found to be more stringent than Federal requirements, would have changed the existing Board rulemaking process to a Department decisionmaking process. The existing rulemaking process involves substantial administrative and technical effort and requires 19 to 27 months to reach a final decision. This process does not allow a final regulatory decision on a designation to be made within 12 months. This ''adjudicatory'' version provided for a public hearing early in the petition review process, reduced the time necessary to make a final decision on the petition by approximately 1 year and would have subjected Department decisions to review by the Environmental Hearing Board. The Department rejected this alternative because it was found to conflict with section 1930-A of The Administrative Code of 1929.
The second alternative, which is the subject of this final rulemaking, would retain the existing Board rulemaking process. Subsequent to the MRAB meeting, the Department modified this ''legislative'' version. Although this process does require additional time to reach a final decision, it also provides a more significant level of public participation in decisions concerning the designation of areas as unsuitable for mining, in keeping with this Administration's objective to improve public access to information and decisionmaking in the Department. Under this approach, the Department makes a final recommendation to the Board within 12 months of the receipt and acceptance of a complete petition.
Numerous changes to the regulatory language in §§ 86.1 and 86.101--86.130 provide clarity and enhance the consistency with the language used in Federal regulations. Sections 86.102(9), 86.103(e) and 86.129 are being changed because they were found to be more stringent than Federal requirements. Metric equivalences have also been incorporated where appropriate.
The proposed rulemaking amendments were adopted by the Board at its meeting of October 21, 1997, and published at 28 Pa.B. 941 (February 14, 1998), with a 60-day public comment period. The public comment period ended on April 15, 1998. There were no public hearings.
Comments on the proposed rulemaking were received from the Pennsylvania Coal Association (PCA) and from the Independent Regulatory Review Commission (IRRC). The comments and the Department's responses were discussed with the MRAB at its meeting of July 10, 1998.
In response to comments received during the official public comment period on the proposed rulemaking, a draft final rulemaking was prepared. The draft final rulemaking amendments were discussed with the MRAB at its meeting of July 10, 1998. The MRAB suggested that the Department add an exemption to § 86.102(9) (relating to areas where mining is prohibited or limited) concerning waivers to the restrictions of mining within 300 feet (91.44 meters) of an occupied dwelling. An exemption has been added to the final-form rulemaking consistent with the Federal language in 30 CFR 761.12 (relating to procedures). The MRAB also suggested changing § 86.125 (relating to procedures: hearing requirements) to read that a public hearing be held within 9 months of receipt of a petition. The SMCRA and Federal statutes and regulations, require a public hearing to be held within 10 months of receipt of a complete petition and for a decision to be made within 60 days after that. The justification for a more stringent provision must be made by a compelling public interest, an articulable interest of the Commonwealth or be required by State law. None of these conditions is satisfied in this case and the Department has not changed this regulatory language.
After review of other related information by the Department, additional changes were made to the draft final rulemaking. On January 31, 1997, the Federal Office of Surface Mining Reclamation and Enforcement (OSM) published a proposed interpretative rulemaking on activities applicable to section 522(e) of the CSL, areas unsuitable for mining. In doing so, OSM presented its definition of ''surface coal mining operation''--information that the Department had sought for over a year. Although OSM's action provided the Department with the guidance needed, it was subsequently recognized that there was an inconsistency between interpretation of the definition included in the Federal proposed rulemaking and the Department's definition of ''surface mining operations'' found in § 86.101. Consequently, the Department revised the definition of ''surface mining operations'' to eliminate the inconsistency.
An Advance Notice of Final Rulemaking (ANFR) was developed to provide for public comment on the changes made in the draft final rulemaking (§ 86.1, concerning the definition of ''surface mining operations'' and § 86.126, concerning Board actions) that had not been previously reviewed by the public. This notice was published at 29 Pa.B. 548 (January 30, 1999) with a 30-day public comment period and was sent to the PCA and to IRRC, who had commented on the proposed rulemaking. Sixteen comment letters were received during the comment period on the ANFR.
The draft final rulemaking and comments received on the ANFR were discussed with the MRAB at its meeting of April 22, 1999. The MRAB recommended that the amendments be adopted as final rulemaking by the Board.
E. Summary of Comments and Responses on Proposed Rulemaking
Comments on the proposed rulemaking were received from the PCA and from IRRC. The following is a discussion of the comments received on the proposed rulemaking.
The PCA believes decisions concerning designation of areas as unsuitable for mining should be made through an administrative adjudicatory process; the process should provide for cross-examination of expert witnesses as occurs in the Federal program; and an adjudicatory process permits the possibility of resolution within 12 months. Although the Department considered an administrative adjudicatory process, it was decided to retain the regulatory process. First, the regulatory process provides more opportunities for public input in the decisionmaking than does the adjudicatory process. Adopting the adjudicatory process would significantly reduce the opportunities for public participation in the decision process. Second, section 1930-A of The Administrative Code of 1929 provides that the Board has the authority and the duty to review areas unsuitable for mining petitions and to designate areas as unsuitable for mining.
A recommendation was made that the regulations retain a requirement for a verbatim transcript of the public hearing. The requirement for providing a verbatim transcript of the public hearing is contained in § 86.125(d) of both the proposed rulemaking and in the final-form rulemaking.
It was also recommended that metric units of measurement be deleted or that an explanation be included in the preamble that they are a convenient reference, which impose no substantive requirements. Equivalent standard international metric system units have been inserted as a convenient reference and impose the same requirements as existing standard measurements.
Both the PCA and IRRC noted that the reference to section 4.5(h) of SMCRA in the definition of ''fragile lands'' is redundant. The reference to section 4.5(h) of SMCRA has been deleted from the definition of ''fragile lands'' in the final-form rulemaking.
The PCA suggested that § 86.102(9)(ii) be revised to provide an exception so that waivers obtained prior to the effective date of the Federal law do not need to be knowingly made. An exception to the requirement that a waiver of the right to restrict mining within 300 feet (91.44 meters) of an occupied dwelling be knowingly made if the waiver was obtained prior to August 3, 1977, has been added to § 86.102(9). This inclusion is consistent with Federal regulatory language used in 30 CFR 761.12.
It was suggested that the definition of ''historic lands'' in § 86.101 be revised to delete references to lands eligible for inclusion on the National Register of Historic Places in conformance with proposed revisions to § 86.102(3) and that the word ''air'' should be deleted from § 86.123(c)(3) in conformance with proposed revisions to the definition of ''surface mining operations'' in § 86.1. The proposed rulemaking language in §§ 86.102(3) and in 86.123(c)(3) is consistent with the language in Federal regulations. An informal inquiry to the Federal Office of Surface Mining Reclamation and Enforcement's OSM Field Office indicated that the suggested changes would make the Department's regulations less effective than Federal requirements. Therefore, no change has been made in the final-form rulemaking.
IRRC commented that the changes to § 86.103(2)(ii) could result in a permit being issued through inaction of a reviewing agency. The change is consistent with Federal language in 30 CFR 761.12(f)(2). This change provides that in the absence of an objection from an agency, the Department may make a decision concerning the proposed mining operation in conjunction with § 86.37(a)(5) and (6) (relating to criteria for permit approval or denial).
IRRC noted that the proposed change to § 86.125(i) which adds the phrase, ''or as otherwise established by the Department'' is too vague and the term ''regulatory decision'' used in § 86.126(b) is not defined. In addition, IRRC suggested that § 86.126(b) should differentiate the procedures used when acting on the Department's recommendation to designate or not to designate an area as unsuitable for mining. The phrase ''or as otherwise established by the Department'' and the term ''regulatory decision'' have been deleted. In addition, two paragraphs have been added to § 86.126(b), which provide the procedures the Board will use concerning designation decisions. Applicable statutory citations have been included.
IRRC also requested clarification of Federal requirements in 30 CFR 764.19(b) (relating to decision) that require a final written decision within 12 months of receipt of a complete petition. The proposed changes to § 86.125(j) provide that the Department will prepare a recommendation to the Board within 60 days of the close of the public comment period. Since the Board must still act on the Department's recommendation, there is a concern as to how the 12-month requirement will be met. The areas unsuitable for mining process is established by separate statutes that contain somewhat conflicting provisions. Federal statutes and regulations require a final written decision by the regulatory authority within 60 days of a public hearing, or if no hearing is held, within 12 months of the receipt of a complete petition. Commonwealth statutes contain similar requirements. The Administrative Code of 1929, however, requires decisions concerning the designation of areas as unsuitable for mining to be made by the Board through the rulemaking process. Because this regulatory process requires mandatory legislative and administrative review schedules and an opportunity for additional public comment, it is not possible for the Board to issue a final written regulatory decision within 12 months. The changes will, however, provide a more timely decisionmaking process. Under this final-form rulemaking, the 12-month statutory requirement will be met when the Department submits a written recommendation to the Board within 12 months of receipt of a complete petition. The Department would also provide notification and a statement of the reasons for the recommendation to the petitioner and intervenors. If the Board decision is that an area should not be designated, the petition process would end with the publication of the Board decision. If the Board decision is that the area should be designated, the Department would submit a proposed rulemaking in accordance with the statutes and existing procedures. Although this process does require additional time to reach a final decision, it also provides a more significant level of public participation in decisions concerning designation of areas as unsuitable for mining and is consistent with the Administration's objectives to improve public access to information and decisionmaking in the Department.
IRRC requested an explanation of what procedure would occur if rather than accepting a Department recommendation, the Board requested additional information or study. If the Board determines that additional information or study is needed, the Department will be asked to provide an appropriate response. The Department routinely provides additional information in response to Board questions.
IRRC also asked that an explanation of the specific changes in the proposed rulemaking that diminish the disproportionate costs on the regulated community be identified in the Regulatory Analysis Form. An explanation has been provided in the Regulatory Analysis Form consistent with the revisions to § 86.126(b) in the final-form rulemaking. The revisions will provide a more timely decision in those cases when the Board determines that an area should not be designated as unsuitable for mining and will allow issuance of mine permits which may have been delayed because of a petition to have the area designated as unsuitable for mining.
The MRAB suggested that the Department add an exemption to § 86.102(9) to provide a waiver to the restriction on mining within 300 feet (91.44 meters) of an occupied dwelling if the waiver was obtained prior to August 3, 1997. An exemption has been added to the draft final rulemaking consistent with Federal language in 30 CFR 761.12.
The MRAB also suggested that the Department consider changing § 86.125 to read that a public hearing on a petition be held within 9 months of receipt of a petition to designate an area as unsuitable for surface mining operations. Pennsylvania SMCRA and Federal statutes and regulations require a public hearing to be held within 10 months of receipt of a complete petition and for a decision to be made within 60 days after that. The purpose of the suggested change was to provide an additional 30 days for the Department to present a recommendation to the Board. The suggested change, if implemented, would make this provision more stringent than the Federal regulations. The justification for a more stringent provision must be made by a compelling public interest, an articulable interest of the Commonwealth or be required by State law. None of these conditions are satisfied in this case. In addition, the desired objective would still not be achieved, since there would continue to be a requirement to make a decision within 60 days of the hearing. For these reasons the Department has not changed this regulatory language.
F. Advance Notice of Final Rulemaking
In response to comments received during the official public comment period on the proposed rulemaking and following the Department's review of other related information, the Department prepared a draft final regulation that contains significant changes in two areas:
§ 86.101. Definitions. In the definition of ''surface mining operations,'' the reference to activities related to underground coal mining that affect the land surface has been deleted to clarify that surface mining operations do not include any surface effects of underground mining resulting from activities that were conducted beneath the land surface.§ 86.126. Procedures: decision. Subsection (b) has been changed to delete the term ''regulatory'' and add paragraphs (1) and (2) to clarify Board action on decisions.The Department solicited comments on the draft final regulations by publication of an ANFR at 29 Pa.B. 548.
Sixteen comment letters and electronic transmissions were received during the public comment period on the ANFR.
General comments were made that many of the proposed regulatory changes weaken environmental protections. Comments received also questioned the premise that the Commonwealth's regulations should conform to Federal regulations if there is a perception that environmental standards are lowered in doing so. Several commentators supported the regulatory changes.
The proposed changes are being made under Governor Ridge's Executive Order 1996-1 dated February 6, 1996, and the Department's Regulatory Basics Initiative. In fulfilling these requirements, the Department has modified regulations to conform to the Federal requirements, except where there was a compelling and articulable interest of the Commonwealth, or the regulatory language was required by a State law, in which case the more stringent Commonwealth language was retained. Some of the proposed changes were made to improve the clarity of the regulatory language.
Comments were received that dealt with the changes in the two areas identified by the Department, as well as other changes contained in the draft final regulations. The Department has carefully reviewed these comments and has determined that changes are appropriate in two sections of the draft final regulations. They are §§ 86.1 and 86.121.
The following is a summary of comments relating to specific sections of the ANFR along with the Department's responses. Comments and responses on general issues are presented after the discussion on individual sections.
Commentators indicated that the reference to a definition in the Code of Federal Regulations in § 86.1 is inappropriate and confusing because the Federal definition of ''valid existing rights'' (VER) is not resolved. Section 4.5 of SMCRA , section 6.1 of the act and section 315 of the CSL provide that VER is to be as defined under section 522 of the Federal Surface Mining Control and Reclamation Act of 1977 Federal SMCRA. This change will conform the Commonwealth's regulations to the statutes and will make it unnecessary for the Commonwealth to change its definition if the Federal definition is changed.
It was suggested that the existing definition in § 86.1 of a ''complete application'' is better than the change to ''administratively complete application'' because under the proposed changes an application need only ''address'' each requirement, instead of needing to ''demonstrate compliance with applicable statutes and regulations.'' The Department agrees that the proposed change does not adequately clarify this issue as intended, therefore, the definition of ''complete application'' has been retained, and appropriate language will be considered in future rulemaking.
Several commentators said that it is premature and unsound to delete language pertaining to activities and impacts related to underground mining that affect the land surface from the definition in § 86.101 of ''surface mining operations.'' No final Federal action has yet been taken on this issue. The definition of ''surface mining operations,'' as proposed, is in accordance with OSM's proposed interpretive rulemaking published in the January 31, 1997, Federal Register (Fed. Reg., 62, No .21, Friday, January 31, 1997) and is consistent with the 1991 opinion of the Federal Department of the Interior's Office of the Solicitor. While the Federal government's position specifically addresses ''subsidence'' and section 522(e), it does so through interpreting the definition of ''surface coal mining operations.'' ''Surface coal mining operations'' is used both in section 522(e) and in the areas unsuitable for mining provisions and must be interpreted consistently. Therefore, the Federal government's interpretation of ''surface coal mining operations'' must also apply to the areas unsuitable for mining provisions.
One commentator believed that section 522(e) of the Federal SMCRA and the Federal interpretation are limited to subsidence and should not be extended to water resource impact and Areas Unsuitable for Mining petitions. The commentator also believes that the Department's changes go beyond the proposed Federal interpretation regarding subsidence and include water resources and the areas unsuitable for mining petition process. The Department believes the draft final rulemaking is consistent with Federal requirements and that it addresses the difference between the physical characteristics of mining activities conducted on the surface as opposed to underground. The Department believes that protection of water resources from underground coal mining activities can only be accomplished on a case-by-case basis through the permit review process.
It was suggested that the word ''significantly'' should not be added to the definition of ''fragile lands'' in § 86.101 because any impacts to fragile lands could be considered significant. Additionally, the last part of the existing definition, beginning with ''and buffer zones adjacent to the boundaries of areas where surface mining operations are prohibited . . .,'' should be retained to ensure effective environmental protection. The Department believes that the addition of the term ''significant'' will not reduce environmental protections and the buffer zones in question will still be protected by mining prohibitions and limitations in § 86.102.
Comments were received suggesting that the existing sentence defining nonprofit organizations as local agencies in this circumstance should not be deleted from § 86.101. When a nonprofit organization has designated lands for public recreational use, those lands should be treated as public parks. The Department believes that the proposed changes will not reduce the protection for publicly owned parks.
Several commentators stated that regulatory changes in § 86.102(3) deleting the phrase ''on or eligible for inclusion'' to the National Register of Historic Places would limit protection only to those sites listed on the National Register. The recommended changes conform the Commonwealth's coal mining regulations to the Federal coal mining regulations in 30 CFR 761.11 (relating to areas where mining is prohibited). The impacts of proposed mining on sites eligible for listing on the National Register of Historic Places are to be addressed during the Department's permit application review process.
It was pointed out that the proposed changes to § 86.102(9) reduce the protection of individuals whose dwellings are within 300 feet of proposed operations and thus should not be adopted. The change is consistent with Federal regulations in 30 CFR 761.11(e) and makes it clear that the regulations will reflect the possession of property rights of the interested persons in accordance with the Commonwealth's property law.
Comments received noted that the proposed change from ''may'' to ''will'' in § 86.103(e) reduces the protections currently afforded to public parks and National Register places. It is not always clearly evident that mining effects ''will'' affect a public or historic site. Additionally, the stipulation in § 86.103(e)(2)(ii) that ''failure of an agency to respond to a notification within a specified comment period constitutes an approval'' is not acceptable. The Department notes that the regulatory changes provide a 30-day response time for the appropriate agency with allowance for an additional 30-day extension if requested by the agency. The Department believes that the regulatory changes provide sufficient time for the agency to respond to a notification.
It was suggested that a demonstration of an ''injury in fact'' test as changes to § 86.123(c)(5) propose is entirely inappropriate and should not be added to the regulations because this would shift the burden of proof onto the injured party. The Department notes that previous petitions requesting areas to be designated were accepted by the Department for study based on the petitioners' demonstration of interests that were, or could have been, adversely affected and petitions based on similar demonstrations could meet the requirement of a demonstration of ''injury in fact.''
It was also suggested that the proposed sentence ''A frivolous petition is one in which the allegations of harm lack serious merit'' in § 86.124(a)(2) is unnecessary because the existing meaning of the word ''frivolous'' is appropriate. The Department, during its initial review, determined the complete, incomplete or frivolous nature of petitions and the change would not materially affect the way unsuitable for mining petitions are processed. The new provision clarifies how the term will be interpreted and applied by the Department.
Several commentators stated that the agency identified in § 86.125 conducting the public fact-finding hearings on areas unsuitable for mining petitions should not be changed from the Board to the Department. The Department responds that this revision simply clarifies the Department's responsibility for the administrative aspects of petitions. The Board will continue to have access to all information obtained from public fact-finding hearings.
One commentator asked whether the Board's final decision would bypass the proposed rulemaking stage and public participation, or if the decision on the petition will be published as a proposed rule. The Department responds that final rulemaking changes to § 86.126(b) retain the existing Board rulemaking process including proposed and final rulemaking provisions if the Board's initial decision is to designate an area unsuitable for mining. If the Board's decision is to not designate an area as unsuitable for mining, the rulemaking process will end with the publication of the decision in the Pennsylvania Bulletin.
It was suggested that the existing language pertaining to coal exploration in § 86.129 that affords protection to areas under study for designation, as well as designated areas, should be retained. It is unclear how coal exploration activities can be consistent with uses and values of an area designated unsuitable for mining. The Department responds that coal exploration has never been prohibited on areas designated unsuitable for mining. The Federal language in 30 CFR 762.14 (relating to exploration on land designated unsuitable for surface coal mining operations) provides for requirement of written approval and the protection of the values and uses of the area designated unsuitable for mining.
One commentator indicated that there was no preamble provided with the ANFR explaining the changes being proposed and there was no comment and response document, making it difficult to understand some of the changes made since the regulations were approved as proposed. Additionally, the 30-day public comment period was too short to allow for review. The Department responds that the purpose of the ANFR was to provide for public review of the draft final rulemaking and to obtain comment on two new issues that had not previously been considered by the public. Since the ANFR was solicited prior to development of the final-form rulemaking, a comment and response document on the proposed rulemaking was not yet available when the ANFR was released for comment. It is the Department's policy to present comments and responses for both the proposed rulemaking and the ANFR to the Board as part of the final-form rulemaking.
Comments received stated that Federal approval by the OSM is needed for all changes to the Commonwealth's coal mining regulations before they become effective. In addition, in the administration, interpretation and implementation of the State program the Department is obligated to conform to the Federal laws and regulations. The Department notes OSM requires final State action on rulemaking changes before formal review of the changes by OSM. The rulemaking will be forwarded to OSM for review and approval when the changes have been approved by the Board.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of these final-form regulations.
Benefits
These amendments were proposed to reduce unnecessary requirements, provide clarity, eliminate redundant or outdated requirements or eliminate State requirements more stringent than their Federal counterparts, when there is no compelling State interest in being more stringent.
No additional costs should result from these changes. The coal mining industry, the public and State government could see savings in the form of reduced time necessary to read and interpret regulations. There could also be some savings to the coal mining industry in reducing time for decisions not to designate an area as unsuitable for mining. The principal benefit of these amendments, however, is that the revised requirements will be no more stringent than Federal law, will provide for more timely decisionmaking and will be more easily understood by the regulated community and the general public. The change will also benefit the public from involvement in the decisionmaking process and opportunity for expressing concerns.
Compliance
The changes are procedural and administrative in nature. They will impose no additional compliance costs on the regulated community. The Department conducts public information workshops for persons or organizations who may be interested in having an area designated unsuitable for mining. These workshops will be modified to describe the changes to the designation process made by these amendments.
Coal mine operators who may be affected by a request to designate an area as unsuitable for mining are identified by the Department when a petition is received and are notified of the regulatory requirements, in writing.
Costs
The amendments will impose no additional costs or paperwork requirements on the regulated community.
H. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 2, 1998, 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(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC and the public. The 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 Environmental Resources and Energy Committee and Senate Environmental Resources and Energy Committee on August 23, 1999. IRRC met on September 9, 1999 and approved the final-form regulations in accordance with section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).
J. 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 final-form regulations do not enlarge the purpose of the proposal published at 28 Pa.B. 941
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of the Preamble.
K. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 86, are amended by amending §§ 86.1, 86.101--86.103, 86.121 and 86.123--86.130 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(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 approval and review 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,
ChairpersonFiscal Note: 7-331. No fiscal impact; (8) recommends adoption.
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 29 Pa.B. 5031 (September 25, 1999).)
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 86. SURFACE AND UNDERGROUND COAL MINING: GENERAL
Subchapter A. GENERAL PROVISIONS § 86.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Acts--Include the following:
(i) The Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.31).
(ii) The Air Pollution Control Act (35 P. S. §§ 4001--4015).
(iii) The Clean Streams Law (35 P. S. §§ 691.1--691.1001).
(iv) The Coal Refuse Disposal Control Act (52 P. S. §§ 30.51--30.66).
(v) Article XIX-A of The Administrative Code of 1929 (71 P. S. §§ 510-1--510-1081).
(vi) The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §§ 1406.1--1406.21).
(vii) The Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27).
(viii) The Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003).
Applicant--A person who seeks to obtain a permit from the Department to conduct coal mining activities under this chapter.
Complete application--An application for a permit which contains an application form properly completed, signed and witnessed, a filing fee, proof of publication, the standard reports or forms required by the Department to process a permit and which demonstrates compliance with applicable statutes and regulations.
* * * * * Valid existing rights--Rights which exist under the definition of ''valid existing rights'' in 30 CFR 761.5 (relating to areas unsuitable for mining).
* * * * *
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