§ 89.5. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Adjacent area—Land located outside the permit area, where air, surface or groundwater, fish, wildlife, vegetation or other resources protected by this chapter may be adversely impacted by mining and reclamation operations.
Affected area—Land or water upon or in which underground mining activities are conducted or located. The term includes land in which the natural land surface has been disturbed as a result of or incidental to the surface activities of the operators including, but not limited to, private ways and roads appurtenant to this area, land excavations, workings, refuse banks, spoil banks, culm banks, tailings, repair areas, storage areas, processing areas, shipping areas, and areas in which structures, facilities, equipment, machines, tools or other materials or property which result from or are used in, underground mining operations are situated. The term also includes lands affected by the construction of new roads or the improvement or substantial use of an existing road to gain access to the site or for hauling from the site.
Application—The documents and other information filed with the Department for the issuance of a permit.
Aquifer—A zone, stratum or group of strata that can store and transmit water in sufficient quantities for a specific use.
Best technology currently available—Equipment, devices, systems, methods or techniques which will:(i) Prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contributions of suspended solids in excess of requirements set by applicable State or Federal laws.
(ii) Minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of those resources when practicable. The term includes equipment, devices, systems, methods or techniques which are currently available anywhere as determined by the Secretary, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, scheduling of activities and design of sedimentation ponds in accordance with this chapter.
Coal preparation activity—An operation in which coal is subject to chemical or physical processing or cleaning, concentrating or other processing or preparation. The term includes a facility associated with the coal preparation activity and the activity by which the land surface has been or is disturbed as a result of or incidental to coal preparation activity of the operator including, but not limited to, the following:(i) Private ways and roads appurtenant to the area, land excavations and loading facilities.
(ii) Storage and stockpile facilities.
(iii) Sheds, shops and other buildings.
(iv) Water treatment and water storage facilities.
(v) Settling basins and impoundments.
(vi) Areas in which are situated facilities, equipment, machines, tools or other materials or property which result from or are used in the coal preparation activity.
Cropland—Land used for the production of adapted crops for harvest, along or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops and other similar specialty crops.
Disturbed area—An area where vegetation, topsoil or overburden is removed or upon which topsoil, spoil, coal processing wastes, underground development wastes or noncoal waste is placed by coal mining operations.
Diversion—A channel, embankment or other manmade structure constructed at a controlled slope to divert water from one area to another.
Dry weather flow—The base flow or surface discharge from an area or treatment facility which occurs immediately prior to a precipitation event and which resumes 24 hours after the precipitation event ends.
Dwelling—A building or other structure that, at the time subsidence occurs, is used either temporarily, occasionally, seasonally or permanently for human habitation.
EPACT structures—(i) Structures that are subject to repair and compensation requirements under section 720(a) of the Surface Mining Control and Reclamation Act (30 U.S.C.A. § 1309a).
(ii) The term includes:
(A) Noncommercial buildings.
(B) Dwellings.
(C) Structures adjunct to or used in conjunction with dwellings, including, but not limited to:
(I) Garages.
(II) Storage sheds and barns.
(III) Greenhouses and related buildings.
(IV) Customer-owned utilities and cables.
(V) Fences and other enclosures.
(VI) Retaining walls.
(VII) Paved or improved patios.
(VIII) Walks and driveways.
(IX) Septic sewage treatment facilities.
(X) Inground swimming pools.
(XI) Lot drainage and lawn and garden irrigation systems.
EPACT water supplies—(i) Water supplies that are subject to replacement under section 720(a) of the Surface Mining Control and Reclamation Act, including drinking, domestic or residential water supplies in existence prior to the date of permit application.
(ii) The term includes water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use.
(iii) The term does not include wells and springs that serve only agricultural, commercial or industrial enterprises except to the extent the water supply is for direct human consumption or human sanitation, or domestic use.
Embankment—An artificial deposit of material that is raised above the natural surface of the land and used to contain, divert or store water, support roads or railways, or for other similar purposes.
Ephemeral stream—A water conveyance which lacks substrates associated with flowing waters and flows only in direct response to precipitation in the immediate watershed or in response to melting snowpack and which is always above the local water table.
Fair market value—The amount at which property would exchange hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts.
Ground cover—The area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of measurement.
Groundwater—Subsurface waters of the Commonwealth.
Historically used for cropland—Includes the following:(i) Lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease or option, of the land for the purpose of conducting or allowing, through resale, lease or option, the conduct of surface coal mining activities.
(ii) Lands that the Department determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion. In which case, the regulations from prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved.
(iii) Lands that would likely have been used as cropland for any 5 out of the last 10 years immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.
Hydrologic balance—The relationship between the quality and quantity of water inflow to, water outflow from and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation and changes in groundwater and surface water storage.
Impoundment—A closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment or waste.
Interim permit—A permit issued by the Department prior to the effective date of this chapter and in accordance with the requirements of Chapter 13 (relating to compliance with the Surface Mining Control and Reclamation Act of 1977).
Intermittent stream—A body of water flowing in a channel or bed composed primarily of substrates associated with flowing water which, during periods of the year, is below the local water table and obtains its flow from both surface runoff and groundwater discharges.
Irreparable damage—Damage to a structure resulting from subsidence which is in one of the following categories. The term includes:(i) Damage for which the total cost of repair, including improvements required by Federal, State and local law to meet current standards, would exceed the cost of replacement.
(ii) Damage of such magnitude that Federal, State or local law would prohibit repair of the structure.
(iii) Damage that weakens the strength of a structure’s foundation, load bearing walls or other load bearing structural components in a manner which would make it impossible or impractical to restore the structure to its previous strength.
(iv) For structures recognized as historically or architecturally significant:
(A) Damage which would adversely affect the structure’s historical or architectural value.
(B) Damage for which the cost of repair to restore the historical and architectural value of the structure with the same craftsmanship and historically and architecturally equivalent components would exceed the cost of replacement.
(C) Damage which would be impossible to repair to restore the historical and architectural value of the structure with the same craftsmanship and historically and architecturally equivalent components.
Material damage—Damage that results in one of the following:(i) Functional impairment of surface lands, structures, features or facilities.
(ii) Physical change that has a significant adverse impact on the affected land’s capability to support current or reasonably foreseeable uses or causes significant loss in production or income.
(iii) Significant change in the condition, appearance or utility of a structure or facility from its presubsidence condition.
Mine—Underground areas contained within a continuous barrier of undisturbed coal and openings to the surface from those areas.
Mine opening blasting—Blasting conducted for the purpose of constructing a shaft, slope, drift or tunnel mine opening for an underground mine, either operating or under development from the surface down to the point where the mine opening connects with the coal seam to be or being extracted.
Noncommercial building—A building, other than an occupied residential dwelling, that, at the time the subsidence occurs, is used on a regular or temporary basis as a public building or community or institutional building as those terms are defined in § 86.101 (relating to definitions). The term does not include a building used only for commercial agricultural, industrial, retail or commercial enterprises.
Operator—A person or municipality engaged in underground mining activities as a principal, as distinguished from an agent or independent contractor. When more than one person is engaged in coal mining activities in a single operation, they shall be deemed jointly and severally responsible for compliance with the provisions of the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19b), The Clean Streams Law (35 P. S. § § 691.1—691.1001) and the Coal Refuse Disposal Control Act (52 P. S. § § 30.51—30.66).
Overburden—The strata or material overlying a coal deposit or in between coal deposits in its natural state and shall mean such material before or after its removal by surface mining.
Perennial stream—A body of water flowing in a channel or bed composed primarily of substrates associated with flowing waters and is capable, in the absence of pollution or other manmade stream disturbances, of supporting a benthic macroinvertebrate community which is composed of two or more recognizable taxonomic groups of organisms which are large enough to be seen by the unaided eye and can be retained by a United States Standard No. 30 sieve (28 meshs per inch, 0.595 millimeter openings) and live at least part of their life cycles within or upon available substrates in a body of water or water transport system.
Permanent diversion—A diversion which is to remain after underground mining activities are completed and which has been approved for retention by the Department.
Permit area—The mine and surface areas where underground mining activities occur.
Pollution-forming materials—Earth materials or wastes which, if acted upon by air, water, weathering or microbiological processes, are likely to produce pollution as defined by The Clean Streams Law (35 P. S. § § 691.1—691.1001) and the regulations promulgated under The Clean Streams Law, or are likely to produce toxic pollutants as defined in section 101 of the Federal Water Pollution Control Act (33 U.S.C.A. § 1251), or are likely to produce chemical or physical conditions that are detrimental to biota.
Precipitation event—A quantity of water resulting from drizzle, rain, snow, sleet or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in this chapter, the term also includes that quantity of water emanating from snow cover as snow melt in a limited period of time.
Prime farmland—Those lands which are defined by the Secretary of Agriculture in 7 CFR 657 (relating to prime and unique farmlands) and which have historically been used for cropland as that phrase is defined in this section.
Property to be mined—Both the surface and mineral estates on and underneath lands which are within the permit area.
Public buildings and facilities—Structures that are owned or leased and principally used by a government agency for public business or meetings and anything built, installed, assembled or used by a government agency to provide a public service. Examples include, but are not limited to, the following:(i) Government office buildings.
(ii) Police stations.
(iii) Prison complexes.
(iv) Municipal swimming pools.
(v) Municipal utilities.
(vi) Municipal airports.
(vii) Public park pavilions and maintenance facilities.
Public water supply system—A water delivery system which does one of the following:(i) Serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.
(ii) Provides water to a public building, church, school, hospital or nursing home.
Rebuttable presumption area—As used in the context of water supply replacement, the area in which an operator is presumed responsible for diminishing, contaminating or interrupting a water supply. The area is defined by projecting a 35° angle from the vertical from the outside of any area where the operator has extracted coal from an underground mine.
Reclamation—Those actions taken to restore the area affected by underground mining activities as required by this chapter.
Secretary—The Secretary of the Department of Environmental Resources of the Commonwealth of Pennsylvania.
Sedimentation pond—A primary sediment control structure designed, constructed and maintained in accordance with this subchapter and Subchapter D (relating to structural requirements for impoundments), and including but not limited to a barrier, dam or excavated depression which detains water runoff to allow sediment to settle out. A sedimentation pond shall not include secondary sedimentation control structures, such as straw dikes, riprap, check dams, mulches, dugouts and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment, to the extent that the secondary sedimentation structures drain to a sedimentation pond.
Soil survey—A field classification and laboratory analysis resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies and interprets the soils for use. Soil surveys shall meet the standards of the National Cooperative Soil Survey.
Stratum (strata)—A section of geologic formation that consists throughout of approximately the same kind of rock material; a stratum may consist of an indefinite number of beds.
Substrates—Inorganic sediments which are .05 millimeter in diameter or larger, and includes sands, granules, pebbles, cobbles or boulders, based on Wentworth’s Classification.
Temporary diversion—A diversion of a stream or overland flow which is used during surface coal mining activities and not approved by the Department to remain after reclamation as part of the approved postmining land use.
Underground development waste—Waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone or related materials that are excavated, moved and disposed of as part of the construction activities in preparing the mine for coal production.
Underground mining—The extraction of coal in an underground mine.
Underground mining activities—Includes the following:(i) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities, including hoist and ventilating ducts, areas used for the disposal and storage of waste and areas on which materials incident to underground mining operations are placed.
(ii) Underground operations such as underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.
(iii) Operation of a mine including preparatory work in connection with the opening and reopening of a mine, backfilling, sealing, and other closing procedures, postclosure mine pool maintenance and any other work done on land or water in connection with a mine.
Underground mining operations—Underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.
Water supply—An existing source of water used for domestic, commercial, industrial or recreational purposes or for agricultural uses, including use or consumption of water to maintain the health and productivity of animals used or to be used in agricultural production and the watering of lands on a periodic or permanent basis by a constructed or manufactured system in place on August 21, 1994, to provide irrigation for agricultural production of plants and crops at levels of productivity or yield historically experienced by the plants or crops within a particular geographic area, or which serves a public building or a noncommercial structure customarily used by the public including churches, schools and hospitals.
Water table—The upper surface of a zone of saturation, where the body of groundwater is not confined by an overlying impermeable zone.(b) When a term not defined in this chapter is used in this chapter, but is defined in Chapters 86—88 and 90 the definition in that chapter is applicable to this chapter.
Authority The provisions of this § 89.5 amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.4(a) and 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); section 11 of the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. § 3311); and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § § 510-17 and 510-20).
(Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).)
Source The provisions of this § 89.5 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended November 18, 1988, 18 Pa.B. 5155, effective August 25, 1989, 19 Pa.B. 3674; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended April 9, 1993, effective April 10, 1993, 23 Pa.B. 1711; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775; amended August 8, 2008, effective August 9, 2008, 38 Pa.B. 4355; amended August 21, 2015, effective August 22, 2015, 45 Pa.B. 4904. Immediately preceding text appears at serial pages (354300), (315399) to (315402) and (335847) to (335850).
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