Subchapter C. PERMITS AND PERMIT APPLICATIONS

§ 77.101. General requirements for permits.

 (a)  A person may not conduct noncoal mining activities or allow a discharge from a mine into the waters of this Commonwealth without first obtaining a permit. It will be presumed that the extraction of noncoal minerals is surface mining activity unless it can be demonstrated, with clear and convincing evidence, to the satisfaction of the Department, that the activities fit within one or more of the exceptions to the definition of noncoal surface mining activities in §  77.1 (relating to definitions), or as provided in §  77.102 (relating to compliance with existing permits).

 (b)  Noncoal surface mining permits will be issued only to a licensed noncoal operator.

 A person may conduct noncoal mining activities under permits issued by the Department prior to March 17, 1990, under The Clean Streams Law (35 P. S. § §  691.1—691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.31) or the act and in compliance with the terms and conditions of the permit except for the requirements of § §  77.504 and 77.561 (relating to distance limitations and areas designated as unsuitable for mining; and general requirements).

   The provisions of this §  77.102 adopted June 29, 1973, effective June 30, 1973, 3 Pa.B. 1203; amended April 25, 1975, effective May 12, 1975, 5 Pa.B. 977; amended March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643. Immediately preceding text appears at serial pages (19690) to (19693) and (123437) to (123438).

 A person who expects to conduct new noncoal mining activities shall file a complete application for a permit for noncoal mining activities a minimum of 180 days prior to the anticipated starting date of the activities or a shorter period of time as determined by the Department.

   The provisions of this §  77.103 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

 (a)  Application for a permit under this chapter shall be submitted to the Department, in writing, upon forms furnished by the Department.

 (b)  An application for a permit shall be accompanied by information, maps, plans, specifications, design analyses, test reports and other data as may be required by the Department to determine compliance with the standards, requirements or purposes of this chapter.

 (c)  Information on the application shall be current, presented clearly and concisely and supported by appropriate references to technical and other written material available to the Department.

 Permit applications under §  77.103 (relating to permit application filing deadlines) shall be complete administratively and include the applicable information required under this chapter.

 If required, a permit application for noncoal mining activities shall be accompanied by a check, payable to the ‘‘Commonwealth of Pennsylvania’’ in the amount set forth by the Department. The Department may require other fees set by the act, the environmental acts, this title or the Secretary.

 Applications for permits shall be verified by a responsible official of the applicant with a statement that the information contained in the application is true to the best of the official’s information and belief, and attested by a notary public or district justice.

 (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:

   (1)  The name and business address of the applicant.

   (2)  An identification of ownership interests.

   (3)  Information and documents required by §  77.163 (relating to right of entry).

   (4)  The type of surface mine and the type of mineral.

   (5)  An explanation on how fugitive dust will be controlled.

   (6)  The type of reclamation and revegetation.

   (7)  The type of erosion and sediment controls.

   (8)  The depth to groundwater, if available.

   (9)  A United States Geological Survey topographical map or aerial photograph approved by the Department with the proposed permit area outlined.

   (10)  The estimated production for the year.

   (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.

 (c)  The areas affected by the extraction of noncoal minerals shall be graded and restored to a slope not to exceed 35° unless approved by the Department under §  77.594(2)(v) (relating to final slopes), and will contain no depressions which will impound water. The affected areas will be revegetated to provide a quick germinating, fast-growing, effective and permanent vegetative cover of the same seasonal variety native to the land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area. Introduced species may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan. Vegetative cover is considered of the same seasonal variety when it consists of a mixture of species of equal or superior utility for the land use, when compared with the utility of naturally-occurring vegetation during each season of the year.

 (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:

   (1)  Erosion and sedimentation control facilities shall be constructed and maintained as necessary to insure compliance with Chapter 102 (relating to erosion and sediment control).

   (2)  The active mining area may not exceed that necessary to meet the stated production as determined by geologic conditions at the site and the nature of the material mined.

   (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.

   (5)  The outer limits of the area approved by this permit are to be field marked for the duration of the mining activity.

   (6)  The permittee shall comply with the Air Pollution Control Act (35 P. S. § §  4001—4015) and regulations of the Department related to air resources, including, but not limited to, § §  123.1 and 123.2 (relating to prohibition of certain fugitive emissions; and fugitive particulate matter) which prohibit the emission of fugitive particulate matter. These prohibitions apply to all aspects of the mining operations including, but not limited to, use of roadways and operation of trucks.

   (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 (D_s) shall be determined by the formula W = (D/D_s)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).

 (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 and sediment 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.

 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).

 As used in this section the term ‘‘borrow area’’ means an area where minerals are extracted solely for the purpose of solid waste site development. The noncoal surface mining permit requirements of the act and this chapter do not apply to the extraction of noncoal minerals within the permit area of a valid solid waste permit issued under the Solid Waste Management Act (35 P. S. § §  6018.101—6018.1003) where the solid waste permittee demonstrates to the Department’s satisfaction that the following exist:

   (1)  The noncoal minerals will be used solely for purposes necessary to comply with solid waste permit requirements.

   (2)  The solid waste permittee maintains a valid noncoal surface mining operator’s license prior to the extraction of the noncoal minerals under Subchapter B (relating to surface mining operator’s license).

   (3)  Noncoal mineral extraction in the borrow area will be conducted in accordance with an erosion and sedimentation control plan or permit implemented under Chapter 102 (relating to erosion and sediment control).

   (4)  The areas affected by the extraction of noncoal minerals shall be graded and restored to a slope not to exceed 35°, and will contain no depressions which will impound water. The affected areas will be revegetated to provide a quick germinating, fast-growing, effective and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal to the extent of cover to the natural vegetation of the area. Introduced species may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan. Vegetative cover shall be considered of the same seasonal variety when it consists of a mixture of species of equal or superior utility for the land use, when compared with the utility of naturally-occurring vegetation during each season of the year.

   (5)  The reclamation of the borrow area will commence within 10 days of the last extraction of noncoal minerals and will be completed within 30 days. Planting shall be completed by the first normal period for favorable planting.

 The noncoal surface mining permit requirements of the act and this chapter do not apply to the stabilization of highwalls in existence on January 1, 1972, if the operator demonstrates, to the Department’s satisfaction, that the following conditions have been met:

   (1)  The highwall was in existence on January 1, 1972.

   (2)  The operator does not affect, or intend to affect, the highwall as part of the mining operation.

   (3)  Neither the operator, nor a related party, has reclamation responsibility for the highwall.

   (4)  The highwall presents an immediate or potential safety hazard to persons working below the highwall, or to persons or property beyond the highwall, or to the public.

   (5)  The amount of materials removed from the highwall in the stabilization operation is only that necessary to achieve stabilization.

   (6)  The operator has submitted a plan to the Department which includes the location of the highwall, demonstrates that the plan will result in stabilization of the highwall, provides a description of the work to be performed and sets forth a timetable for completing the work.

   (7)  The Department has approved the plan described in paragraph (6), in writing.

   (8)  The work to be performed is in accordance with the approved plan, and timetable. Stabilization work may not occur under this section until the Department has approved the plan.

   (9)  Coal is not removed or encountered.

   The provisions of this §  77.112 adopted October 11, 1991, effective October 12, 1991, 21 Pa.B. 4838.

REVIEW, PUBLIC PARTICIPATION, ITEMS AND
CONDITIONS OF PERMIT APPLICATIONS

§ 77.121. Public notices of filing of permit applications.

 (a)  At the time of filing an application with the Department, an applicant for a permit, transfer, renewal or revision under §  77.142 (relating to public notice of permit revision) shall place an advertisement in a local newspaper of general circulation in the locality of the proposed noncoal mining activities once a week for 4-consecutive weeks. The advertisement shall contain the following information:

   (1)  The name and business address of the applicant.

   (2)  The township and county in which the operation is located.

   (3)  The receiving stream.

   (4)  A map or description which shall:

     (i)   Clearly show or describe towns, rivers, streams or other bodies of water, local landmarks and other information, including routes, streets or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area.

     (ii)   Clearly show or describe the exact location and boundaries of the proposed permit area, and the receiving stream.

     (iii)   State the name of the United States Geological Survey 7.5 minute quadrangle map which contains the area shown or described.

     (iv)   If a map is used, indicate the north point.

   (5)  The location where a copy of the application is available for public inspection under subsection (b).

   (6)  The name and address of the Department’s appropriate District or Regional Office to which written comments, objections or requests for public hearings or informal conferences on the application may be directed.

   (7)  If an applicant seeks to open or expand a pit within 100 feet of the outside line of right-of-way of a public highway; within 300 feet of an occupied dwelling house or commerical or industrial building, unless released by the owner thereof; within 300 feet of a public building, school or community or institutional building; within 300 feet of a public park; or within 100 feet of a cemetery or the bank of a perennial or intermittent stream, the applicant shall give public notice under §  77.504(b)(1) (relating to distance limitations and areas designated as unsuitable for mining).

 (b)  No later than the first date of the newspaper advertisement under subsection (a), the applicant shall file a complete copy of the application except as provided under §  77.124(a) (relating to public availability of information in permit applications) for the public to copy and inspect at a public office approved by the Department in the county where the noncoal mining activities are to occur.

 (c)  During the public notification period, the applicant shall notify each property owner within the proposed permit area, by registered mail, of the proposed permit except for surface landowners who have a completed Consent of Landowner form submitted with the application.

 (d)  Upon receipt of a complete application, the Department will publish notice of the proposed activities in the Pennsylvania Bulletin.

 (e)  Upon receipt of a complete application, the Department will notify:

   (1)  By registered mail, the city, borough, incorporated town or township in which the activities are located.

   (2)  Federal, State and local government agencies with jurisdiction over or an interest in the area of the proposed activities.

 (f)  The content of the notice shall include:

   (1)  The application number.

   (2)  The name and business address of the applicant.

   (3)  The township and county in which the operation is located.

   (4)  The receiving streams.

   (5)  A brief description of the operation and the location.

   (6)  The location where a copy of the application may be inspected.

   (7)  Where comments on the application may be submitted.

   The provisions of this §  77.121 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

 (a)  Written comments or objections on the permit application or application for permit revision may be submitted to the Department within 30 days after the last publication of the newspaper advertisement placed by the applicant under §  77.121(a) (relating to public notices of filing of permit applications) by a person having an interest that is, or may be, adversely affected.

 (b)  The Department will immediately transmit the comments or objections received under this section to the applicant.

   The provisions of this §  77.122 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

 (a)  A person having an interest that is, or may be, adversely affected may request in writing that the Department hold a public hearing or an informal conference on an application for a permit. The request shall:

   (1)  Briefly summarize the issues to be raised by the requestor at the public hearing or informal conference.

   (2)  Be filed with the Department within 30 days after the last publication of the newspaper advertisement placed by the applicant under §  77.121(a) (relating to public notices of filing of permit applications) or within 30 days of receipt of notice by the public entities to whom notification is provided under §  77.121(d).

 (b)  Except as provided in subsection (c), if a public hearing or an informal conference is requested under subsection (a), the Department will hold a public hearing or an informal conference within 60 days following the receipt of the request. The public hearing or informal conference will be conducted as follows:

   (1)  The public hearing or informal conference shall be held in the locality of the proposed mining operation.

   (2)  The date, time and location of the public hearing or informal conference shall be advertised by the Department in a newspaper of general circulation in the locality of the proposed mine at least 2 weeks prior to the scheduled public hearing or informal conference.

   (3)  The public hearing or informal conference shall be conducted by a representative of the Department who may accept oral or written statements and other relevant information from a party to the public hearing or informal conference.

 (c)  If the parties requesting the public hearing or informal conference agree to withdraw their request, the public hearing or informal conference need not be held.

 (d)  Informal conferences held under §  77.504 (relating to distance limitations and areas designated as unsuitable for mining) may be used by the Department as the public hearing or informal conference required under proposed uses or relocation of public highways.

 (e)  The Department will give its findings of the public hearing or informal conference to the permit applicant and to each person who is a party to the public hearing or informal conference within 60 days of the public hearings or informal conference.

 (f)  Within 60 days of the public hearing or informal conference, the Department will notify the applicant of its decision to approve or disapprove or of its intent to disapprove subject to the submission of additional information.

 (a)  Information contained in permit applications on file with the Department will be open, upon request, for public inspection at reasonable times. Information in permit applications which pertains only to the analysis of the chemical and physical properties of the mineral to be mined—excepting information regarding mineral or elemental contents which are potentially toxic in the environment—will be kept confidential and not be made a matter of public record.

 (b)  Confidential information shall be clearly identified by the applicant and submitted under separate cover but concurrently with other portions of the application.

   The provisions of this §  77.124 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

 (a)  The Department will review the complete application, written comments, written objections and records of a public hearing or informal conference.

 (b)  If the Department decides to approve the application, it will require that the applicant file the performance bond under Subchapter D (relating to bonding and insurance requirements) before the permit is issued.

 (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—1396.31).

   (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).

   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. Immediately preceding text appears at serial pages (198684) and (228209).

   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).

 (a)  The Department will notify the permit applicant of its decision to approve or disapprove or of its intent to disapprove unless the applicant submits additional information, within a stated time, to resolve deficiencies according to the following time limits:

   (1)  If an informal conference or public hearing has not been held, notice will be within a reasonable time not to exceed 60 days of the close of the public comment period.

   (2)  If a public hearing or informal conference has been held, notice will be within 60 days of the public hearing or informal conference.

 (b)  Simultaneously with the final action on a permit application, the Department will:

   (1)  Issue notice of its decision to the applicant and each person who filed a written objection or comment on the application.

   (2)  Publish its decision in the Pennsylvania Bulletin and within 10 days after the granting of a permit, issue notice to the local government officials of each township or municipality in which the activities are located.

   The provisions of this §  77.127 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1647.

 (a)  A permit will be issued for the duration of the mining and reclamation operation except for the NPDES permit, which shall be renewed every 5 years.

 (b)  A permit will terminate if the permittee has not begun the noncoal mining activities covered by the permit within 3 years of the issuance of the permit. The Department may grant reasonable extensions of time for commencement of these activities upon receipt of a written statement showing that the extensions of time are necessary if litigation precludes the commencement or threatens substantial economic loss to the permittee or if there are conditions beyond the control and without the fault or negligence of the permittee. Requests for extensions shall be submitted to the Department prior to expiration of the permit. If a permit has not been activated within 3 years or the permittee has not been granted an extension, the permittee may apply for a permit renewal.

 (c)  A permit renewal application shall be filed under §  77.143 (relating to permit renewals).

 A permit issued by the Department will, at a minimum, ensure and contain the following conditions:

   (1)  Except to the extent that the Department otherwise directs in the permit that specific actions be taken, the permittee shall conduct noncoal mining activities as described in the approved application.

   (2)  The permittee shall allow the authorized representatives of the Commonwealth, without advance notice or a search warrant, upon presentation of appropriate credentials, and without delay, to have access to the areas in which noncoal mining activities will or are being conducted.

   (3)  The permittee shall conduct noncoal mining activities only on the lands specifically approved in the permit for which a bond has been filed with the Department under Subchapter D (relating to bonding and insurance requirements).

 A permit issued by the Department will ensure and contain specific conditions requiring that the permittee:

   (1)  Take all possible steps to prevent adverse impact, resulting from noncompliance with the terms or conditions of the permit, on the environment or public health and safety, including:

     (i)   An accelerated or additional monitoring necessary to determine the nature and extent of noncompliance and the results of the noncompliance.

     (ii)   A warning immediately after learning of noncompliance to persons whose health and safety is in imminent danger due to the noncompliance.

   (2)  Dispose of solids, sludges, filter backwash or pollutants removed in the course of treatment or control of waters or emissions to the air in the manner which prevents violation of an applicable State or Federal law. The permittee shall conduct the activities in accordance with measures specified in the permit that are necessary to prevent environmental harm or harm to the health or safety of the public.

 Within 90 days after commencement of surface mining operations and each year thereafter, unless modified or waived by the Department for cause, the operator shall file in triplicate an operations and progress report with the Department, on a form prescribed and furnished by Department. The following information shall be included:

   (1)  The name and permit number of the operation.

   (2)  The location of the operation as to county and township and with reference to the nearest public highway.

   (3)  A description of the tracts.

   (4)  The name and address of the landowner or an authorized representative.

   (5)  An annual report of the type and quantity of mineral produced, number of employes and days worked.

   (6)  A report of fatal and nonfatal accidents for the previous year.

   (7)  The current status of the reclamation work performed in the pursuit of the approved reclamation plan.

   (8)  Other or further information the Department may reasonably require.

   The provisions of this §  77.131 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

PERMIT REVIEWS, RENEWALS, REVISIONS
AND TRANSFERS

§ 77.141. Permit revisions.

 (a)  A revision to a permit shall be obtained for a change to the noncoal mining activities, as defined by the Department, set forth in the application.

 (b)  The permitee shall submit the application for permit revisions which require public notification to the Department at least 180 days before undertaking the change. In emergency situations, the Department may waive the 180-day requirement.

 (c)  An application for revision shall be complete and contain the following information:

   (1)  The permittee’s name and address and permit number.

   (2)  A description of the proposed revisions, including appropriate maps, plans and application to demonstrate that the proposed revision complies with the acts, the environmental acts and this chapter.

 (d)  The Department will approve or disapprove the complete application for revision under §  77.127 (relating to final permit action).

 (e)  Revisions to change permit boundaries for needed support facilities may be considered by the Department.

 (f)  The addition of acreage for mineral extraction shall be considered as an application for a new permit, except if the Department deems the area to be an insignificant boundary correction.

 A permit revision request is subject to the notice requirements of §  77.121 (relating to public notices of filing of permit applications) under the following circumstances:

   (1)  For surface mining activities:

     (i)   Discharging to a different watershed or a change in water treatment facility design which would result in a change in effluent limits or additional discharge points.

     (ii)   The change of postmining land use.

     (iii)   A change in the type of reclamation (for example—approximate original contour, terrace, water impoundment or other alternative reclamation).

     (iv)   A physical change in the mine configuration. Physical changes include stream diversion structures, new or expanded haul road connections to a public highway, elimination of public highways and increases in approved pit depth.

     (v)   The addition of blasting to the operation.

     (vi)   The addition of mineral processing to the mining activity.

   (2)  For underground mining activities:

     (i)   Discharging to a different watershed or a change in water treatment facility design which would result in a change in effluent limits or additional discharge points.

     (ii)   A physical change in the mine configuration. Physical changes include stream diversion structures, new or expanded haul road connections to a public highway, elimination of public highways and new openings.

     (iii)   A change to the postmining land use.

     (iv)   The addition of mineral processing to the mining activity.

   The provisions of this §  77.142 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643; amended January 30, 1998, effective January 31, 1998, 28 Pa.B. 619. Immediately preceding text appears at serial pages (198688) and (234459).

 (a)  NPDES permit renewals. An application for renewal of an NPDES permit shall be filed with the Department at least 180 days before the expiration date of the NPDES permit in question. A renewal application shall be filed in the format required by the Department.

 (b)  Mine permit renewals—general requirements.

   (1)  A valid, existing permit issued by the Department will carry with it the presumption of successive renewals upon expiration of the term of the permit. Successive renewals will be available only for areas which were specifically approved by the Department on the application for the existing permit.

   (2)  A permit renewal will not be available for extending the acreage of the operation beyond the boundaries of the permit area approved under the existing permit. Addition of acreage to the operation will be considered a new application. A request for permit revision may accompany a request for renewal and shall be supported with the information required for application as described in this chapter.

   (3)  A complete application for renewal of a permit, as established in this chapter, shall be filed with the Department at least 180 days before the expiration date of the particular permit in question. A renewal application shall be filed in the format required by the Department.

   (4)  An application for renewal is subject to the requirements of public notification and participation of §  77.121 (relating to public notices of filing of permit applications).

   (5)  A permit renewal shall be for a term not to exceed the period of the original permit.

   (6)  Unless the Department finds that the permit should not be renewed under paragraph (7), it will issue a permit renewal after finding that the requirements of this chapter and the requirements of public participation and notification are satisfied.

   (7)  A permit will not be renewed if the Department finds that one of the following applies:

     (i)   The requested renewal substantially jeopardizes the operator’s continuing ability to comply with the act, the environmental acts, this title and the regulatory program on existing permit areas.

     (ii)   The operator has failed to provide evidence that a bond required to be in effect for the activities will continue in full force and effect for the proposed period of renewal, as well as additional bond the Department might require.

     (iii)   Additional revised or updated information required by the Department has not been provided by the applicant.

   (8)  The Department will send copies of its decision to the applicant, persons who filed objections or comments to the renewal and to persons who were parties to an informal conference held on the permit renewal.

   The provisions of this §  77.143 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

 (a)  A transfer, assignment or sale of the rights granted under a permit may not be made, except as provided in this section.

 (b)  Permits may be reissued in a new name if there is no change in legal entity.

 (c)  The Department may allow a permittee to transfer a permit to another operator if the successor operator:

   (1)  Meets the requirements of §  77.126(a)(6)—(9) (relating to criteria for permit approval or denial).

   (2)  Assumes liability for reclamation, water pollution, planting and other responsibilities under the law, rules and regulations and the terms and conditions of the permit from the date of original issuance of the permit.

   (3)  Furnishes the Department with an appropriate bond in the amount specified by the Department under Subchapter D (relating to bonding and insurance requirements).

   (4)  Submits proof of publication as required by §  77.121 (relating to public notices of filing of permit applications).

   (5)  Submits additional information to enable the Department to determine that the applicant is able to operate the mine in a manner complying with the environmental acts.

   The provisions of this §  77.144 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643; amended January 30, 1998, effective January 31, 1998, 28 Pa.B. 619; corrected February 13, 1998, effective January 31, 1998, 28 Pa.B. 801. Immediately preceding text appears at serial pages (234460) to (234461) and (198691).

 Department approval of transfer, including, but not limited to, permit transfer does not limit the original permittee’s responsibility, liability, duty or obligation under the law unless release is approved by the Secretary. If one operator succeeds another at an uncompleted operation, by sale, assignment, lease or otherwise, the Secretary may release the first operator from liability under the act as to that particular operation if both operators have complied with the requirements of the act and this chapter, and the successor operator assumes as part of his obligation under the act, liability for grading, planting and reclamation on the land affected by the former operator.

   The provisions of this §  77.145 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

REQUIREMENTS FOR LEGAL, FINANCIAL
COMPLIANCE AND RELATED INFORMATION

§ 77.161. Responsibilities.

 As part of each application for a permit, the applicant shall provide relevant information on the ownership of persons who will be conducting the noncoal mining activities, the compliance status and history of the persons, the ownership and control of the property to be affected by the operations and other information related to the noncoal mining activities. At a minimum, the information required by § §  77.162—77.165 shall be included.

 (a)  An application shall contain the following information if the information is different from that provided with the license application:

   (1)  The names and addresses of:

     (i)   The permit applicant, including his telephone number.

     (ii)   The legal or equitable owners of record of the mineral to be mined and areas to be affected by surface operations and facilities.

     (iii)   The contractor, if the contractor is a person different from the applicant, including his telephone number.

     (iv)   The resident agent of the applicant who will accept service of process, including his telephone number.

   (2)  The names and addresses of the owners of record of surface areas contiguous to any part of the proposed permit area.

   (3)  The name of the proposed mine and the Mine Safety and Health Administration identification number for the mine and sections, if any.

 (b)  An application shall contain a statement of whether the applicant is a corporation, partnership, single proprietorship, association, joint venture or government agency, or other business entity. For business 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 or parent or subsidiary corporations.

   (2)  The names under which the applicant listed in paragraph (1) previously operated a mining operation in this Commonwealth within the 5 years preceding the date of application.

 (c)  If an applicant identified under subsection (a) is a business entity, other than a single proprietor, the application shall contain the names and addresses of the respective partners, associates, officers or parent or subsidiary corporations.

   The provisions of this §  77.162 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

 (a)  An application shall contain a description of the documents upon which the applicant bases his legal right to enter and commence noncoal mining activities within the permit area and whether that right is subject to pending court litigation.

 (b)  The application shall provide, for lands within the permit area, the following:

   (1)  If the permit application is based upon leases in existence on or before January 1, 1972, the application for permit shall include, upon a form prescribed and furnished by the Department, a notice of the existence of the lease and a description of the chain of title.

   (2)  If the permit application is based on documents other than leases in existence on or before January 1, 1972, the application shall include upon a form prepared by the Department, the written consent of the landowner to entry upon land to be affected by the operation and by the Commonwealth and its authorized agents, prior to the initiation of surface mining operations, during surface mining operations, and for a period of 5 years after the operation is completed or abandoned for the purpose of reclamation, planting and inspection or for the construction of any pollution abatement facilities as may be deemed necessary by the Department for the purposes of the act and regulations promulgated thereto.

 (c)  For purposes of this section, the term ‘‘lease’’ means an agreement in which the surface landowner is the lessor and the applicant is the lessee or the assignee of the lessee.

 (d)  Forms submitted under subsection (b) shall be deemed to be recordable documents, and prior to the initiation of noncoal mining activities under the permit, the forms shall be recorded by the applicant at the office of the recorder of deeds in the county in which the area to be affected under the permit is situated.

 (e)  The information required in subsections (a) and (b) shall be made part of the permit application prior to the approval of the bond under Subchapter D (relating to bonding and insurance requirements).

   The provisions of this §  77.163 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.

 An application for noncoal mining activities, when required by section 5(e) of the act (52 P. S. §  3305(e)), shall contain proof of liability insurance under §  77.231 (relating to terms and conditions for liability insurance).

   The provisions of this §  77.164 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643; amended January 30, 1998, effective January 31, 1998, 28 Pa.B. 619. Immediately preceding text appears at serial page (198693).

 (a)  An application shall contain an intent to publish noting that the advertisement requirement of §  77.121(a) (relating to public notices of filing of permit applications) is in the process of being satisfied. Prior to the issuance of the permit, and within 4 weeks after the last date of advertisement, the applicant shall submit a copy of the advertisements as required by §  77.121(a) or the original notarized proof of publication to the Department.

 (b)  Failure to submit the proof of publication under subsection (a) will result in the application not being complete and the Department will return the application to the applicant to start the process again.

   The provisions of this §  77.165 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643; amended January 30, 1998, effective January 31, 1998, 28 Pa.B. 619. Immediately preceding text appears at serial pages (198693) to (198694).

   The provisions of this §  77.182 adopted July 31, 1981, effective August 1, 1981, 11 Pa.B. 2680; reserved March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643. Immediately preceding text appears at serial page (138797).