§ 77.126. Criteria for permit approval or denial.
(a) A permit, permit renewal or revised permit application will not be approved, unless the application affirmatively demonstrates and the Department finds in writing, on the basis of the information in the application or from information otherwise available, that the following apply:
(1) The permit application is accurate and complete and that the requirements of the act, the environmental acts and this chapter have been complied with.
(2) The applicant has demonstrated that the noncoal mining activities can be reasonably accomplished as required by the act and this chapter under the operation and reclamation plan contained in the application.
(3) The applicant has demonstrated that there is no presumptive evidence of potential pollution of the waters of this Commonwealth.
(4) The proposed permit area, as defined in § 77.1 (relating to definitions) for surface mining activities—unless the requirements of § 77.504 (relating to distance limitations and areas designated as unsuitable for mining) are demonstrated—is:
(i) Not within 100 feet (30.48 meters) of the outside right-of-way line of a public highway.
(ii) Not within 300 feet (91.44 meters) of an occupied dwelling house or commercial or industrial building unless released by the owner thereof.
(iii) Not within 100 feet (30.48 meters) of the bank of a perennial or intermittent stream.
(iv) Not within 300 feet (91.44 meters) of a public building, school or community or institutional building.
(v) Not within 100 feet (30.48 meters) of a cemetery.
(vi) Not within 300 feet (91.44 meters) of a public park.
(vii) Not within 125 feet (38.1 meters) of an oil or gas well.
(viii) Not within an area designated as unsuitable for noncoal surface mining activities under § 77.504.
(5) Prior to approval of the bond under Subchapter D (relating to bonding and insurance requirements), a right of entry has been obtained if required by law, from the landowners for the initial incremental bond phase parcel for land to be affected by the surface mining activities under § 77.163 (relating to right of entry).
(6) The applicant or related party, as indicated by past or continuing violations, has not shown a lack of ability or intention to comply with the act or the Surface Mining Conservation and Reclamation Act (52 P.S. § § 1396.1—1396.19b).
(7) A person other than the applicant, including an independent subcontractor, who is proposed to operate under the permit is listed in the application and is subject to approval by the Department prior to engaging in surface mining operations. The person is jointly and severally liable with the permittee for the violations of the act as the permittee is charged and in which the person participates.
(8) The applicant has submitted proof that a violation related to mining by the applicant or by a related party of one or more of the acts, rules, regulations, permits or licenses of the Department has been corrected or is in the process of being corrected to the satisfaction of the Department, whether or not the violation relates to an adjudicated proceeding, agreement, consent order, or decree, or which resulted in a cease order or civil penalty assessment.
(9) The proposed postmining land use of the permit area meets § 77.462 (relating to postmining land uses and alternative restoration).
(10) The proposed activities would not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their known critical habitats as determined under the Endangered Species Act of 1973 (16 U.S.C.A. § § 1531—1544), the Wild Resource Conservation Act (32 P.S. § § 5301—5314), 30 Pa.C.S. (relating to the Fish and Boat Code) and 34 Pa.C.S. (relating to the Game and Wildlife Code).
(11) The applicant has obtained a noncoal license.
(b) No incremental phase approval of the permit will be granted to conduct mining or reclamation operations, or permission to expand mining or reclamation operations within a permit area which has been limited to a portion or phase of the entire area until the applicant:
(1) Has filed with the Department a bond under § 77.193 (relating to requirement to file a bond).
(2) Has met the requirements of subsection (a)(5)—(8).
(c) A permit, permit renewal or revised permit application will not be approved unless the applicant has made full payment of the permit application fee required under § 77.106(e) (relating to fees) and the annual administration fee required under § 77.106(f) for all of the applicant’s permitted mining facilities.
Authority The provisions of this § 77.126 amended under section 7(a) of the Noncoal Surface Mining Conservation and Reclamation Act (52 P.S. § 3307(a)); section 5 of The Clean Streams Law (35 P.S. § 691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § § 1396.4(a) and 1396.4b); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 77.126 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643; amended September 30, 1994, effective October 1, 1994, 24 Pa.B. 4887; amended January 30, 1998, effective January 31, 1998, 28 Pa.B. 619; amended October 12, 2012, effective October 13, 2012, 42 Pa.B. 6536; amended August 21, 2015, effective August 22, 2015, 45 Pa.B. 4904. Immediately preceding text appears at serial pages (240718) and (363949) to (363950).
Notes of Decisions Interpretation
The Department of Environmental Protection’s interpretations of its own regulations are entitled to deference. Its interpretation that an applicant need demonstrate that there is no evidence that presumptively indicates pollution will occur, is reasonable and will not be disturbed by the court. Birdsboro v. Department of Environmental Protection, 795 A.2d 444 (Pa. Cmwlth. 2002).
Cross References This section cited in 25 Pa. Code § 77.108 (relating to permits for small noncoal operations); and 25 Pa. Code § 77.144 (relating to transfer of permit).
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