§ 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.

   Application—The documents and other information filed with the Department for the issuance of a permit.

   Bond—A bond by which a permittee assures faithful performance of the requirements of the acts, this chapter, Chapters 87—90 and the requirements of the permit and reclamation plan.

   Coal mining activity—Surface mining activities, underground mining activities, coal preparation activities or coal refuse disposal activities as these terms are defined in this section.

   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.

   Coal refuse disposal activities—Activities whereby a plot of land is used as a place for disposing, dumping or storage of coal refuse. These areas may include land thereby affected, including, but not limited to, a deposit of coal refuse on or buried in the earth and intended as permanent disposal of or long-term storage of the material, but not including coal refuse deposited within an active mine itself or coal refuse never removed from a mine. The term includes activities in which the natural land surface has been disturbed as a result of or incidental to the coal refuse disposal activities of the operator, including, but not limited to, private ways and roads appurtenant to the area, land excavations, workings, 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 coal refuse disposal activities are situated.

   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.

   Cumulative measurement period—For purposes of §  86.5 (relating to extraction of coal incidental to noncoal surface mining), the period of time over which both cumulative production and cumulative revenue are measured.

   Cumulative production—For purposes of §  86.5, the total tonnage of coal or other minerals extracted from a mining area during the cumulative measurement period. The inclusion of stockpiled coal and other mineral tonnages in this total is governed by §  86.5(k).

   Cumulative revenue—For purposes of §  86.5, the total revenue derived from the sale of coal or other minerals and the fair market value of coal or other minerals transferred or used, but not sold, during the cumulative measurement period.

   Entity—A person including, but not limited to, a corporation, association, general and limited partnership, agency and instrumentality of Federal or State government, contractor, operator, permit holder and other forms of business organization.

   Existing structure—A structure or facility used in connection with or to facilitate coal mining activities for which construction began prior to the effective date of this chapter.

   General area—The topographic and groundwater basin, with respect to hydrology, surrounding a permit area which is of sufficient size, including areal extent and depth, to include one or more watersheds containing perennial streams and groundwater zones and to allow assessment of the probable cumulative impacts on the quality and quantity of surface water and groundwater systems in the basins.

   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 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 for 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 the acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.

   Historic resource—A building, structure, object, district, place, site or area significant in the history, architecture, maritime heritage, archaeology or culture of this Commonwealth, its communities or the Nation. The term includes the terms ‘‘cultural resource,’’ ‘‘archaeological resource,’’ ‘‘historic place,’’ ‘‘historic property,’’ ‘‘archaeological site’’ and ‘‘archaeological property’’ as used in this chapter and Chapters 87—90.

   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).

   Landowner—The person or municipality in whom legal title to the land is vested.

   Land use—A specific use or management-related activity, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur.

   MSHA—The Mine Safety and Health Administration of the United States Department of Labor.

   Mining area—For purposes of §  86.5, an individual excavation site or pit from which coal, other minerals and overburden are removed.

   Municipality—A county, city, borough, town, township, school district, institution or an authority created by any one or more of the foregoing.

   Occupied dwellings—A permanent building or fixed mobile home that is currently being used on a regular or temporary basis for human habitation.

   Operator—A person or municipality engaged in coal 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, The Clean Streams Law, the Coal Refuse Disposal Control Act and The Bituminous Mine Subsidence and Land Conservation Act.

   Other minerals—For purposes of §  86.5, a commercially valuable substance mined for its mineral value, excluding coal, topsoil, waste and fill material.

   Owned or controlled and owns or controls—One or a combination of the relationships specified in subparagraphs (i)—(iv):

     (i)   Being a permittee of a coal mining activity.

     (ii)   Based on instruments of ownership or voting securities, owning of record in excess of 50% of an entity.

     (iii)   The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant coal mining activity is conducted:

       (A)   Being an officer or director of an entity.

       (B)   Being the operator or contractor of a coal mining activity.

       (C)   Having the ability to commit the financial or real property assets or working resources of an entity.

       (D)   Being a general partner in a partnership.

       (E)   Based on the instruments of ownership or the voting securities of a corporate entity, owning of record a percentage of the entity as established in the definition of ‘‘owned or controlled and owns or controls’’ in 30 CFR 773.5 (relating to definitions).

       (F)   Owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive the coal after mining or having authority to determine the manner in which that person or another person conducts a coal mining activity.

     (iv)   Having another relationship which gives one person authority directly or indirectly to determine the manner in which an applicant, an operator or other entity conducts coal mining activities.

   Participates—To take part in an action or to instruct another person or entity to conduct or not to conduct an activity.

   Passive treatment system—A mine drainage treatment system which does not require routine operational control or maintenance. The term includes biological or chemical treatment systems, alone or in combinations, as approved by the Department, such as artificially constructed wetlands, cascade aerators, anoxic drains or sedimentation basins.

   Permit—A permit issued by the Department to conduct coal mining activities.

   Permit area—Includes the following:

     (i)   For surface mining activities and refuse disposal activities: the area of land and water within the boundaries of the permit, which area is designated on the permit application maps as approved by the Department. This area shall include areas which are or will be affected by the surface mining activities or refuse disposal activities.

     (ii)   For underground mining activities: the mine and areas where underground mining activities occur.

   Permittee—A person holding, or required to hold by the acts, a permit issued by the Department to conduct coal mining activities.

   Person—A natural person, partnership, association or corporation, or an agency, instrumentality or entity of Federal or State government. Whenever used in a clause prescribing and imposing a penalty, or imposing a fine or imprisonment, or both, the term ‘‘person’’ may not exclude the members of an association and the directors, officers or agents of a corporation.

   Postmining pollutional discharge—A discharge of mine drainage emanating from or hydrologically connected to the permit area, which may remain after coal mining activities have been completed, and which does not comply with the applicable effluent requirements described in §  87.102, §  88.92, §  88.187, §  88.292, §  89.52 or §  90.102. The term includes minimal-impact postmining discharges, as defined in section 3 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.3).

   Prime farmland—Land which is defined by the Secretary of Agriculture in 7 CFR Part 657 (relating to prime and unique farmlands) and which has been historically used for cropland.

   Principal shareholder—A person who is the legal owner of 10% or more of any class of voting stock.

   Property—Real or personal property.

   Public road—A thoroughfare open to the public which has been or is being used by the public for vehicular travel.

   Related party—A partner, associate, officer, director, shareholder, parent corporation, subsidiary corporation, affiliate or persons under common control with the applicant, contractor or subcontractor. The term does not include persons who are excluded, based on a percentage of ownership, under the definition of ‘‘owned or controlled and owns or controls.’’

   Surface mining activities—Activities whereby coal is extracted from the earth or from waste or stock piles or from pits or banks by removing the strata or material which overlies or is above or between the coal or otherwise exposing and retrieving the coal from the surface, including, but not limited to, strip, auger mining, dredging, quarrying and leaching, and surface activity connected with surface or underground mining, including, but not limited to, exploration, site preparation, entry, tunnel, slope, shaft, drift and borehole drilling and construction and activities related thereto. The term does not include portions of mining operations carried out beneath the surface by means of shafts, tunnels or other underground mine openings. The term includes activities in which the land surface has been or is disturbed as a result of, or incidental to, surface mining operations of the operator, including, but not limited to, private ways and roads appurtenant to a surface mining operation, land excavations, workings, refuse banks, spoil banks, culm banks, tailings, repair areas, storage areas, processing areas, shipping areas and areas in which facilities, equipment, machines, tools or other materials or property which result from, or are used in, surface mining activities are situated. The term includes the construction of a road or similar disturbance for any purpose related to a surface mining activity, including that of moving or ‘‘walking’’ a dragline or other equipment, or for the assembly or disassembly or staging of equipment.

   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, area 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.

   Valid existing rights—Rights which exist under the definition of ‘‘valid existing rights’’ in 30 CFR 761.5 (relating to areas unsuitable for mining).

   Violation notice—A written notification from a governmental entity of a violation of law, whether by letter, memorandum, legal or administrative pleading or other written communication.

   Waters of the Commonwealth—Rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and other bodies or channels of conveyance of surface water and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.

   Willful violation—An act or omission which violates the acts, this chapter, Chapter 87, 88, 89 or 90, or a permit condition required by the acts, this chapter or Chapter 87, 88, 89 or 90, committed by a person who intends the result which actually occurs.

   The provisions of this §  86.1 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); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. §  30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  86.1 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 December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended November 14, 1997, effective November 15, 1997, 27 Pa.B. 6041; amended November 28, 1997, effective November 29, 1997, 27 Pa.B. 6186; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289; corrected January 12, 2001, effective October 9, 1999, 31 Pa.B. 145; corrected July 25, 2003, effective November 15, 1997, 33 Pa.B. 3608; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial pages (313482) to (313489).

   This chapter is not preempted by the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. § §  1201—1328) since the act allows for State regulations providing for more stringent land use and environmental control. Budinsky v. Department of Environmental Resources, 819 F.2d 418 (3rd Cir. 1987).

   For purposes of determining bond forfeiture for failure to reclaim, the definition of surface mining activities set forth in this section is interpreted to include nonpermitted areas only when the permitted area is adjacent or contingent to the nonpermitted area or when the ecological harm can be traced directly to the permitted area. Department of Environmental Resources v. Ogden, 501 A.2d 311 (Pa. Cmwlth. 1985).

 This chapter specifies certain general procedures and rules for those persons who engage in coal mining activities. This chapter together with Chapters 87—90 specifies the procedures and rules for those who engage in coal mining activities.

 Moneys, including permit application fees, fines, bond forfeitures and civil penalties deposited in the Coal Refuse Disposal Control Fund may be used by the Department for the elimination of pollution, the abatement of health and safety hazards and nuisances, reclamation and other related uses including conducting scientific studies and research as authorized under the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66).

 (a)  A person who intends to extract coal incidental to the extraction of other minerals shall do so under the provisions of a noncoal surface mining permit issued under Chapter 77 (relating to noncoal mining) and subject to the conditions described in this section. Incidental coal extraction which has been approved by the Department subject to the conditions in this section shall be exempt from the other requirements of this chapter and the requirements of Chapter 87 and Chapter 88, Subchapters A—C.

 (b)  Subject to Department approval, for purposes of determining the beginning of the cumulative measurement period, the operator shall select and consistently use one of the following:

   (1)  For mining areas where coal or other minerals were extracted prior to August 3, 1977, the date extraction of coal or other minerals commenced at that mining area or August 3, 1977, whichever is earlier.

   (2)  For mining areas where extraction of coal or other minerals commenced on or after August 3, 1977, the date extraction of coal or other minerals commenced at that mining area.

 (c)  A person who plans to commence extraction of coal incidental to noncoal surface mining shall file with the Department a complete request for exemption from the requirements identified in subsection (a). The request shall be submitted as part of an application for a permit, or for a permit revision, to conduct noncoal surface mining activities.

 (d)  A person who has commenced incidental extraction of coal under a noncoal mining activity permit prior to December 16, 1995, may continue the extraction until February 14, 1996, after which no further incidental coal extraction may occur unless that person files an administratively complete request for exemption as described in subsection (g). Incidental coal extraction may then continue until the Department has made its final decision and written determination on the request for exemption.

 (e)  Sections 77.121 and 77.122 (relating to public notices of filing of permit applications; and opportunity for submission of written comments or objections on the permit application) shall be followed by the applicant and by the Department.

 (f)  Information relative to incidental coal extraction will be made available to the public as follows:

   (1)  Except as provided in paragraph (2), the information submitted to the Department under this section shall immediately be made available for public inspection and copying at the local offices of the Department having jurisdiction over the mining operations claiming exemption until at least 3 years after expiration of the period during which the subject mining area is active.

   (2)  The Department may keep information submitted to the Department under this section confidential if the person submitting it requests in writing, at the time of submission, that it be kept confidential and the information concerns trade secrets or is privileged commercial or financial information of the persons intending to conduct operations under this section.

   (3)  Information requested to be held as confidential under paragraph (2) will not be made publicly available until after notice and opportunity to be heard is afforded persons both seeking and opposing disclosure of the information.

 (g)  A request for exemption shall include at a minimum:

   (1)  The name and address of the applicant.

   (2)  A list of the minerals sought to be extracted.

   (3)  Estimates of annual production of coal and the other minerals within each mining area over the anticipated life of the mining operation.

   (4)  Estimated annual revenues to be derived from bona fide sales of coal and other minerals to be extracted within the mining area.

   (5)  The estimated annual fair market values at the time of projected use of the coal and other minerals to be extracted from the mining area, where coal or the other minerals are to be used rather than sold.

   (6)  The basis for annual production, revenue and fair market value estimates.

   (7)  A description, including county, municipality and boundaries of the land, of sufficient certainty that the mining areas may be located and distinguished from other mining areas.

   (8)  An estimate to the nearest acre of the number of acres that will compose the mining area over the anticipated life of the mining operation.

   (9)  Evidence of publication, in a newspaper of general circulation in the county of the mining area, of a public notice that a request for exemption has been filed with the Department. The public notice shall identify the persons claiming the exemption and contain a description of the proposed operation and its locality that is sufficient for interested persons to identify the operation.

   (10)  Representative stratigraphic cross-sections based on test borings or other information identifying and showing the relative position, approximate thickness and density of the coal and each other mineral to be extracted for commercial use or sale and the relative position and thickness of material, not classified as other minerals, that will also be extracted during the conduct of mining activities.

   (11)  A map to a scale of not less then 1:25,000 which clearly identifies the mining area.

   (12)  A general description of mining and mineral processing activities for the mining area.

   (13)  A summary of sales commitments and agreements for future delivery, if any, which the applicant has received for other minerals to be extracted from the mining area, or a description of potential markets for the minerals.

   (14)  A description specifying the use, if the other minerals are to be commercially used by the applicant.

   (15)  For permitted noncoal surface mining activities which have been in operation prior to requesting an exemption, the following additional information:

     (i)   Relevant documents the operator has received from the Department documenting its exemption from the act.

     (ii)   The cumulative production of the coal and other minerals from the mining area.

     (iii)   Estimated tonnages of stockpiled coal and other minerals.

   (16)  Other information pertinent to the qualification of the operation as exempt.

 (h)  The Department will notify the applicant if the request for exemption is incomplete and may at any time require submittal of additional information. The Department will approve a request for exemption only if the following are satisfied:

   (1)  The cumulative production of coal extracted from the mining area determined annually, as described in subsection (j)(4), does not exceed 16 2/3% of the total cumulative production of coal and other minerals removed during the period for purposes of bona fide sale or reasonable commercial use.

   (2)  Coal is produced from a geological stratum lying above the deepest stratum from which other minerals are extracted for purposes of bona fide sale or reasonable commercial use.

   (3)  The cumulative revenue derived from the coal extracted from the mining area determined annually does not exceed 50% of the total cumulative revenue derived from the coal and other minerals removed for purposes of bona fide sale or reasonable commercial use. If the coal extracted or the minerals removed are used by the operator or transferred to a related entity for use instead of being sold in a bona fide sale, the fair market value of the coal or other minerals shall be calculated at the time of use or transfer and shall be considered rather than revenue.

   (4)  Each other mineral upon which an exemption under this section is based shall be a commercially valuable mineral for which a market exists or which is mined in bona fide anticipation that a market will exist for the mineral in the reasonably foreseeable future, not to exceed 12 months from the end of the current period for which cumulative production is calculated, as evidenced by a legally binding agreement or other commitment for the future sale of other minerals, or other evidence that will establish to the Department's satisfaction that a bona fide market exists for the other minerals.

   (5)  If either coal or other minerals are transferred or sold by the operator to a related entity for its use or sale, the transaction shall be made for legitimate business purposes.

 (i)  Exemption determination will be as follows:

   (1)  Within 90 days after filing of an administratively complete application, the Department will make a written determination whether, and under what conditions, an exemption can be granted under this section, and will notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.

   (2)  The determination of exemption shall be based upon information contained in the application and other information available to the Department at that time.

   (3)  A person who is adversely affected by the determination may file an appeal as provided for under Chapter 1021 (relating to Environmental Hearing Board).

 (j)  A person whose request for exemption has been approved by the Department shall:

   (1)  Maintain onsite or at other locations available to authorized representatives of both the Department and the United States Department of the Interior information necessary to verify the exemption including, but not limited to, commercial use and sales information, extraction tonnages, and a copy of the exemption application and exemption approved by the Department.

   (2)  Notify the Department upon the completion of the mining operation or permanent cessation of coal extraction activities.

   (3)  Conduct operations in accordance with the approved request for exemption.

   (4)  File a written annual report beginning no later than 30 days after the end of the calendar quarter during which coal extraction commenced and each succeeding year no later than the anniversary of the initial report, for each mining area covered by an exemption. The report shall cover the preceding 12-month cumulative measurement period and shall contain the following information:

     (i)   Annual production of coal and other minerals and annual revenue derived from coal and other minerals during the preceding 12-month period.

     (ii)   The cumulative production of coal and other minerals and the cumulative revenue derived from coal and other minerals.

     (iii)   The number of tons of extracted coal sold in bona fide sales and total revenue derived from the sales.

     (iv)   The number of tons of coal extracted and used or transferred by the operator or related entity and the estimated total fair market value of the coal.

     (v)   The number of tons of coal stockpiled.

     (vi)   The number of tons of other commercially valuable minerals extracted and sold in bona fide sales and total revenue derived from the sales.

     (vii)   The number of tons of other commercially valuable minerals extracted and used or transferred by the operator or related entity and the estimated total fair market value of the minerals.

     (viii)   The number of tons of other commercially valuable minerals removed and stockpiled by the operator.

 (k)  Stockpiling of coal and other minerals for calculating and reporting of cumulative production will be considered as follows:

   (1)  Coal extracted and stockpiled may be excluded from the calculation of cumulative production until the time of its sale, transfer to a related entity or use under one of the following:

     (i)   Up to an amount equaling a 12-month supply of the coal required for future sale, transfer or use as calculated based upon the average annual sales, transfer and use from the mining area over the 2 preceding years.

     (ii)   Up to an amount that would represent a 12-month supply of the coal required for future sales, transfer or use as calculated based on the average amount of coal sold, transferred or used each month for a mining area where coal has been extracted for a period of less than 2 years.

   (2)  The Department will disallow all or part of an operator’s tonnages of stockpiled other minerals for purposes of meeting the requirements of this section if the operator fails to maintain adequate and verifiable records of the mining area of origin, the disposition of stockpiles or if the disposition of the stockpiles indicates the lack of commercial use or market for the minerals.

   (3)  The Department may allow an operator to utilize tonnages of stockpiled other minerals for purposes of meeting the requirements of this section only if the following apply:

     (i)   The stockpiling is necessary to meet market conditions or is consistent with generally accepted industry practices.

     (ii)   Except as provided in paragraph (4), the stockpiled other minerals do not exceed a 12-month supply of the mineral required for future sales as approved by the Department on the basis of the exemption application.

   (4)  The Department may allow an operator to utilize tonnages of stockpiled other minerals beyond the 12-month limit established in paragraph (3) if the operator can demonstrate to the Department’s satisfaction that the additional tonnage is required to meet future business obligations of the operator, such as may be demonstrated by a legally binding agreement or other commitment or legitimate evidence of the need for future delivery of the minerals.

   (5)  The Department may periodically revise the other mineral stockpile tonnage limits in accordance with the criteria established by paragraphs (3) and (4) based on additional information available to the Department.

 (l)  The Department will conduct an annual compliance review of the mining area, utilizing the annual report submitted under subsection (j)(4), an onsite inspection and other information available to the Department.

 (m)  If the Department has reason to believe that a specific mining area was not exempt under this section at the end of the previous reporting period, is not exempt or will be unable to satisfy the exemption criteria at the end of the current reporting period, the Department will notify the operator that the exemption may be revoked and the reasons therefor. The exemption will be revoked unless the operator demonstrates to the Department within 30 days that the mining area in question should continue to be exempt. The operator and interested parties will be immediately notified of the revocation.

 (n)  Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained and shall comply with the reclamation standards of the Department with regard to conditions, areas and activities existing at the time of revocation or denial.

 (o)  An operator who does not conduct activities in accordance with the terms of an approved exemption and knows or should know the activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of the Department’s regulations which occur during the period of the activities.

   The provisions of this §  86.5 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); sections 4 and 11(a) of the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. § §  3304 and 3311(a)); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  86.5 adopted February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial page (198781).

 (a)  Extraction of coal incidental to government-financed construction or government-financed reclamation projects is exempt from the permitting requirements of the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a) and this chapter as it relates to surface mining activities and operations, and Chapters 87 and 88 (relating to surface mining of coal; and anthracite coal) if the following conditions are met:

   (1)  During the project site selection process and prior to development of final construction plans or reclamation plans for projects located within coal bearing regions, the government entity financing the construction or reclamation has provided the Department with an opportunity to provide comments on the potential environmental impacts of the project.

   (2)  The extraction of coal is necessary to enable the construction or reclamation to be accomplished. Only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line or other similar construction, or within the boundaries of the area directly affected by other types of government-financed construction or government-financed reclamation, may be considered incidental to that construction or reclamation.

   (3)  The construction or reclamation is funded by a Federal, Commonwealth, county, municipal, or local unit of government, or a department, bureau, agency, or office of the unit which, directly or through another unit of government, finances the construction or reclamation.

   (4)  The construction or reclamation is funded 50% or more by funds appropriated from the government unit’s budget or obtained from general revenue bonds. Funding at less than 50% may qualify if the construction is undertaken as a Department-approved reclamation contract or project.

   (5)  The construction or reclamation is performed under a bond, contract and specifications that substantially provide for and require protection of the environment, reclamation of the affected area, and handling of excavated materials in a manner consistent with the acts and regulations implementing the acts.

   (6)  The Department has approved the standards and specifications for protection of the environment that will apply to the project when potential adverse environmental impacts have been identified.

 (b)  Construction funded through government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent or in-kind payments do not qualify as government-financed construction.

 (c)  A person extracting coal incidental to government-financed construction or government-financed reclamation who extracts more than 250 tons of coal or affects more than 2 acres shall maintain on the site of the extraction operation and make available for inspection the following documents:

   (1)  A written description of the construction or reclamation project.

   (2)  A map showing the exact location of the construction or reclamation, right-of-way or the boundaries of the area which will be directly affected by the construction or reclamation.

   (3)  A statement identifying the government agency that is providing the financing and the kind and amount of public financing, including the percentage of the entire construction costs represented by the government financing.

   (4)  When the area delineated in paragraph (2) is wholly or partially within an area designated unsuitable for mining by the EQB under §  86.130 (relating to areas designated as unsuitable for mining), a copy of the detailed report required by §  86.124(e) (relating to procedures: initial processing, recordkeeping and notification requirements).

 (d)  Government-financed construction projects and government-financed reclamation must comply with Chapters 91—96, 102 and 105.

   The provisions of this §  86.6 issued under section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.46(a)); and section 1920-A of The Administrative Code of 1929 (71 P. S. 510-20).

   The provisions of this §  86.6 adopted March 11, 2005, effective March 12, 2005, 35 Pa.B. 1663.

Subchapter B. PERMITS

GENERAL REQUIREMENTS FOR PERMITS AND
PERMIT APPLICATIONS

Sec.

§ 86.11. General requirements for permits.

 (a)  No person may operate a mine or allow a discharge from a mine into the waters of the Commonwealth unless the person has obtained a permit from the Department.

 (b)  Permits will be issued only to an operator.

 (c)  Except as provided in §  86.12 (relating to continued operation under interim permits) and Subchapter E (relating to coal exploration), on and after 8 months from the effective date of this chapter, no person may engage in or carry out coal mining activities within this Commonwealth unless that person has obtained a valid permit and authorization issued by the Department.

   The provisions of this §  86.11 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 June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316. Immediately preceding text appears at serial page (148466).

   It was proper for the Department of Environmental Resources to refuse to exempt small mines from its permit requirements and this section was not preempted by Federal law. Budinsky v. Department of Environmental Resources, 819 F.2d 418, 420 (3rd Cir. 1987).

 (a)  A person conducting coal mining activities under a permit issued in accordance with Chapter 13 (relating to compliance with the Surface Mining Control and Reclamation Act of 1977), who has filed an application for permit under §  86.14(a) (relating to permit application filing deadlines) for which the Department has not rendered a decision may conduct these activities under the permit beyond the period prescribed in §  86.11(c) (relating to general requirements for permits) if:

   (1)  A timely and complete application for a permit has been made to the Department under this chapter.

   (2)  The Department has not yet rendered an initial administrative decision with respect to the application.

   (3)  The operations are conducted in compliance with terms and conditions of the permit, Chapter 13, the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.25), the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66), the Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § §  1406.1—1406.21), the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27) and the Air Pollution Control Act (35 P. S. § §  4001—4015).

 (b)  A person conducting coal preparation activities which were not subject to the requirements of this chapter and Chapters 87—90 prior to August 25, 1989 may continue operating the facility if the following requirements are met:

   (1)  An initial permit application is submitted by October 24, 1989.

   (2)  A complete application as defined under §  86.16 (relating to application contents) is submitted to the Department in accordance with a schedule established by the Department.

   (3)  The Department has not yet rendered an initial administrative decision with respect to the application.

   (4)  The operations are conducted in compliance with the requirements of the acts and the performance standards in this chapter and Chapters 87—90.

   The provisions of this §  86.12 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 and corrected March 17, 1989, 19 Pa.B. 1169, effective August 25, 1989, 19 Pa.B. 3674. Immediately preceding text appears at serial pages (148467) to (148468).

 A person may not conduct coal mining activities except under permits issued under this chapter and in compliance with the terms and conditions of the permit and the requirements of this chapter and Chapters 87—90 and the statutes under which they were promulgated.

   The provisions of this §  86.13 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.

   Permit Required

   When read together, section 315(a) of The Clean Streams Law (35 P. S. §  691.315(a)) and this section clearly express a legislative and regulatory interest to require all ongoing and future coal mining activities to be conducted only under permits issued under the primacy regulations. Bloom v. Department of Environmental Resources, 515 A.2d 361 (Pa. Cmwlth. 1986).

 (a)  Each person who possesses a permit for coal mining activities issued by the Department prior to the effective date of this chapter and who expects to conduct the permitted activities after the expiration of 8 months from the effective date of this chapter shall reapply for a permit for those activities within 2 months of the effective date of this chapter.

 (b)  Each person who conducts or expects to conduct new coal mining activities shall file a complete application for a permit for coal 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 §  86.14 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.

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

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

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

 (d)  Technical data submitted in the application shall include:

   (1)  Names of persons or organizations which collected and analyzed the data.

   (2)  Dates of the collection and analyses.

   (3)  Descriptions of methodology used to collect and analyze the data.

   The provisions of this §  86.15 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.

 Persons submitting permit applications under §  86.14(a) (relating to permit application filing deadlines), shall reapply for a permit within 2 months by submitting an initial application on forms available from the Department and shall thereafter submit a complete application, including proof of publication, in accordance with a schedule determined by the Department. Other applications submitted under §  86.14(b) shall be complete and include, at a minimum, the applicable information required under this chapter and:

   (1)  Chapter 87 (relating to surface mining of coal) for surface mining activities.

   (2)  Chapter 88 (relating to anthracite coal) for anthracite coal mining activities.

   (3)  Chapter 89 (relating to underground mining of coal and coal preparation facilities) for underground mining activities and coal preparation activities.

   (4)  Chapter 90 (relating to coal refuse disposal) for coal refuse disposal activities.

   The provisions of this §  86.16 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.

   As the Department of Environmental Resources refused to process Petitioner’s application for a mining permit, petitioners subsequently commenced an action to compel the Department to process their application, and based on a prior Superior Court decision, requested the production of two memoranda for discovery which the Court determined to be protected from discovery under the work product doctrine as to one memorandum and immune on the basis of the attorney-client privilege as to the other. Sedat, Inc., v. Department of Environmental Resources, 641 A.2d 1243 (Pa. Cmwlth. 1994).

 (a)  A permit application for coal mining activities shall be accompanied by a check for $250 payable to the ‘‘Commonwealth of Pennsylvania.’’

 (b)  A permit application for a coal preparation plant shall be accompanied by a check for $250 payable to the ‘‘Commonwealth of Pennsylvania.’’

 (c)  A renewal application, whether the site has not yet been activated or where coal is being extracted, shall be accompanied by a check for $250 payable to the ‘‘Commonwealth of Pennsylvania.’’ A renewal application for reclamation activities requires no application fee.

 (d)  A permit application for coal refuse disposal activities shall be accompanied by a check for $500 plus $10 per acre for acreage in excess of 50 acres payable to the ‘‘Commonwealth of Pennsylvania.’’

 (e)  In addition to the bond established under § §  86.145, 86.149 and 86.150 (relating to Department responsibilities; determination of bond amount; and minimum amount), there is a $100 per acre reclamation fee for surface mining activities except for the surface effects of underground mining. This reclamation fee may be paid as acreage within an approved surface mining permit is authorized for mining. The reclamation fee will be deposited in the Surface Mining Conservation and Reclamation Fund as a supplement to forfeited bonds. The reclamation fee shall only be used for reclaiming mining operations which have defaulted on their obligation to reclaim.

   The provisions of this §  86.17 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 June 15, 1990, 20 Pa.B. 3383; effective July 27, 1991, 21 Pa.B. 3316; amended August 6, 1993, effective August 7, 1993, 23 Pa.B. 3685. Immediately preceding text appears at serial page (158690).

 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 and correct to the best of the official’s information and belief, and attested by a notary public or district justice.

   The provisions of this §  86.18 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.

   This section cited in 25 Pa. Code §  88.381 (relating to general requirements).

REVIEW, PUBLIC PARTICIPATION AND APPROVAL,
DISAPPROVAL OF PERMIT APPLICATIONS AND PERMIT
TERMS AND CONDITIONS

§ 86.31. Public notices of filing of permit applications.

 (a)  An applicant for a permit, transfer or renewal, or for revision as required by §  86.54 (relating to public notice of permit revision) shall place at the time of filing an application with the Department, an advertisement in a local newspaper of general circulation in the locality of the proposed coal mining activities at least once a week for 4 consecutive weeks. The advertisement shall contain, at a minimum, the following information:

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

   (2)  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)   Indicate the north point, if a map is used.

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

   (4)  The name and address of the Department’s appropriate district or regional office to which written comments, objections or requests for informal conferences on the application may be submitted under § §  86.32 and 86.34 (relating to opportunity for submission of written comments or objections on the permit application; and informal conferences).

   (5)  A concise statement describing the public road, the particular part to be relocated, where the relocation is to occur and the duration of the relocation, if an applicant seeks a permit to mine within 100 feet (30.48 meters) of the outside right-of-way of a public road or to relocate a public road.

   (6)  If an applicant seeks a variance to conduct coal mining activities within 100 feet (30.48 meters) of a stream, a description of the activities and the name of the stream.

 (b)  No later than the first date of the newspaper advertisement under subsection (a), the applicant for a new permit, except as provided in §  86.35(a) (relating to public availability of information in permit applications), shall file a complete copy of the application for the public to copy and inspect at a public office approved by the Department in the county where the coal mining activities are to occur. The applicant shall file a subsequent revision of the application for a new permit with that office at the same time the revision is submitted to the Department. In the case of repermitting under § §  86.12 and 86.14 (relating to continued operation under interim permits; and permit application filing deadlines), permit renewals under §  86.55 (relating to permit renewals: general requirements), permit revisions under §  86.52 (relating to permit revisions) and permit transfers under §  86.56 (relating to transfer of permit), the permittee shall indicate in the public notice that a copy of the permit and accompanying documents is available for inspection and copying at the appropriate district or regional office.

 (c)  Upon receipt of a complete application, the Department will publish notice of the proposed activities in the Pennsylvania Bulletin and send notice to the following:

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

   (2)  Sewage and water treatment authorities and water companies that may be affected by the activities.

   (3)  Governmental planning agencies with jurisdiction to act with regard to land use, air or water quality planning in the area of the proposed activities.

   (4)  Federal, State and local government agencies with jurisdiction over or an interest in the area of the proposed activities, including, but not limited to, general governmental entities and fish and wildlife and historic preservation agencies.

 (d)  The content of the notice shall include:

   (1)  The application number.

   (2)  The name and address of the applicant.

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

   (4)  The receiving stream.

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

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

   (7)  The location where comments on the application may be submitted.

   (8)  A statement that the application is for a new permit, a renewal of an existing permit or the transfer of an existing permit to a new operator.

 (e)  The applicant for a permit, transfer or renewal or revision for surface mining activities who proposes to conduct surface mining activities within 125 feet (38.1 meters) of a permitted or registered oil or gas well shall send to each permittee or to any owner or agent of any owner of a permitted or registered oil or gas well a notice, by certified mail, return receipt requested, that the applicant intends to conduct surface mining activities within 125 feet (38.1 meters) of the well. The notice shall include the information required by subsection (a)(1)—(4). The notice shall be sent by certified mail prior to the filing of the surface mining activities permit application with the Department. If the applicant demonstrates that it has made a good faith effort to comply with this requirement by mailing the required notice to the address of record or last known address of the registered well owner or permittee, and the notice has been returned as undeliverable or refused, notice may be deemed made by publication in compliance with subsection (a). Where a permittee under an approved surface mining permit proposes to conduct surface mining activities within 125 feet (38.1 meters) of a permitted or registered oil or gas well, and if publication of the proposed activities is not required, the surface mining permittee shall send the notice required by this subsection by certified mail, return receipt requested, to the owner, agent of an owner or permittee of a permitted or registered oil or gas well within 125 feet (38.1 meters) of the activities at least than 60 days prior to conducting the activities.

   The provisions of this §  86.31 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 June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (219158) and (206647).

 (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 §  86.31(a) (relating to public notices of filing of permit applications) by a person or an officer or head of a Federal, State or local government agency or authority. In addition to submitting comments, the permittee, owner or agent of an owner of an oil or gas well who receives a notice required by §  86.31(e) may provide the Department, within 30 days after the last publication of the newspaper advertisement placed by the applicant, or if publication of the advertisement is not required, within 45 days after receipt of the notice required by §  86.31(e), a description of the measures the well permittee, owner or agent believes are necessary to minimize damage, destruction or disruption of services provided by the oil or gas well which may be caused by the proposed surface mining activities. The Department will also publish notice of permit applications in the Pennsylvania Bulletin.

 (b)  The Department will immediately transmit comments or objections received under this section to the applicant and the office where the applicant filed a copy of the application for public inspection under §  86.31(b).

   The provisions of this §  86.32 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 June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial page (206648).

 (a)  A person or the officer or head of a Federal, State or local government agency or authority or the owner or operator of an oil and gas well who receives a notice required by §  86.31(e) (relating to public notices of filing of permit applications) may, in writing, request that the Department hold an informal conference on an application for a permit. The request shall:

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

   (2)  State whether the requestor desires to have the conference conducted in the locality of the proposed coal mining activities.

   (3)  Be filed with the Department within 30 days after the last publication of the newspaper advertisement placed by the applicant under §  86.31(a) or within 30 days of receipt of notice by the public entities to whom notification is provided under §  86.31(c).

 (b)  Except as provided in subsection (c), if an informal conference is requested in accordance with subsection (a), the Department will hold an informal conference within 60 days of the close of the public comment period. The informal conference will be conducted according to the following:

   (1)  The conference will be held in the locality of the proposed mining, if requested under subsection (a)(2).

   (2)  The date, time and location of the informal conference will 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 conference.

   (3)  If requested, in writing, by a conference requestor in a reasonable time prior to the conference, the Department may arrange with the applicant to grant parties to the conference access to the permit area for the purpose of gathering information relevant to the conference.

   (4)  The conference will be conducted by a representative of the Department who may accept oral or written statements and other relevant information from a party to the conference. An electronic or stenographic record will be made of the conference proceeding, unless waived by all parties. The record will be maintained and will be accessible to the parties of the conference until final release of the applicant’s performance bond under Subchapter F (relating to bonding and insurance requirements).

 (c)  If all parties requesting the informal conference stipulate agreement before the requested informal conference and withdraw their request, the informal conference need not be held.

 (d)  Informal conferences held in accordance with §  86.103(c) (relating to procedures) may be used by the Department as the public hearing required under proposed uses or relocation of public roads.

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

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

   The provisions of this §  86.34 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 June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206648) and (234493).

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

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

   The provisions of this §  86.35 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.

 (a)  The Department will review the complete application, written comments, written objections and records of a public hearing or informal conference held under § §  86.32 and 86.34 (relating to opportunity for submission of written comments or objections on the permit application; and informal conferences).

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

 (c)  The Department will verify from the schedule submitted under §  86.63 (relating to compliance information) or other information available to the Department that coal mining activities owned or controlled by the applicant, a person owned or controlled by the applicant or a person who owns or controls the applicant under the definition of ‘‘owned or controlled’’ or ‘‘owns or controls’’ in §  86.1 (relating to definitions) are not currently in violation of the acts or the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. § §  1201—1328), or that the violation is in the process of being corrected to the satisfaction of the regulatory authority, department or agency which has jurisdiction over the violation of the acts or the Surface Mining Control and Reclamation Act of 1977 and a law, rule or regulation of a department or agency of the United States or of a state in the United States pertaining to air or water environmental protection incurred by the applicant in connection with a coal mining activity during the 3-year period prior to the date of application.

 (a)  A permit 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, which is documented in the approval, and made available to the applicant, that the following apply:

   (1)  The permit application is accurate and complete and that the requirements of the acts and this chapter have been complied with.

   (2)  The applicant has demonstrated that the coal mining activities can be feasibly 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 assessment of the probable cumulative impacts of all anticipated coal mining in the general area on the hydrologic balance as described in §  87.69, §  88.49, §  89.36 or §  90.35 has been made by the Department, and the activities proposed under the application have been designed to prevent material damage to the hydrologic balance outside the proposed permit area.

   (5)  The area covered by the operator’s bond and upon which the operator proposes to conduct surface mining activities within the boundary of the proposed surface or coal mining activities permit is not one of the following:

     (i)   Included within an area designated unsuitable for mining under Subchapter D (relating to areas unsuitable for mining).

     (ii)   Within an area which has been included in a petition for designation under §  86.124(a)(6) (relating to procedures: initial processing, recordkeeping and notification requirements).

     (iii)   On lands subject to the prohibitions or limitations of Subchapter D.

     (iv)   Within 100 feet (30.48 meters) of the outside right-of-way line of any public road, except as provided for in Subchapter D.

     (v)   Within 300 feet (91.44 meters) from any occupied dwelling, except as provided for in Subchapter D.

     (vi)   Within 100 feet (30.48 meters) of a stream, except as provided for in §  86.102 (relating to areas where mining is prohibited or limited).

   (6)  The proposed activities will not adversely affect any publicly owned parks or places included on the National Register of Historic Places, except as provided for in Subchapter D. The effect of the proposed coal mining activities on properties listed on or eligible for listing on the National Register of Historic Places has been taken into account by the Department. This finding may be supported in part by inclusion of appropriate permit conditions or operational plan changes to protect historic resources, or a documented decision that no additional protective measures are necessary.

   (7)  Prior to approval of the bond under Subchapter F (relating to bonding and insurance requirements), a right of entry has been obtained from the landowner for each parcel of land to be affected by the coal mining activities in accordance with §  86.64 (relating to right of entry).

   (8)  The applicant has submitted proof that a violation related to the mining of coal by the applicant, a person owned or controlled by the applicant or a person who owns or controls the applicant under the definition of “owned or controlled” or “owns or controls” in §  86.1 (relating to definitions) or by a related party of the acts, a rule, regulation, permit or license 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. A permit issued under this paragraph on the basis that a violation is in the process of being corrected or pending the outcome of an appeal, and the appropriate regulatory authority program having jurisdiction over the violation provides for a stay of execution of the abatement procedure or a court of competent jurisdiction has issued a supersedeas providing that relief, will be issued conditionally.

   (9)  A statement from the applicant that all reclamation fees required by 30 CFR Part 870 (relating to abandoned mine reclamation fees) have been paid.

   (10)  There are no past or continuing violations which show the applicant’s, a person owned or controlled by the applicant or a person who owns or controls the applicant under the definition of “owned or controlled” or “owns or controls” in §  86.1, lack of ability or intention to comply with the acts or the regulations promulgated thereunder, 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. If the Department makes a finding that the applicant or the operator specified in the application or a person who owns or controls the applicant or operator or a person owned or controlled by the applicant or operator, has demonstrated a pattern of willful violations of the acts of a nature and duration and with resulting irreparable damage to the environment as to indicate an intent not to comply with the acts, a permit will not be issued.

   (11)  The applicant has submitted proof that a violation by the applicant or by a person owned or controlled by the applicant or by a person who owns or controls the applicant under the definition of “owned or controlled” or “owns or controls” in §  86.1, of a law, rule or regulation of the United States or a state—other than the law of the Commonwealth—law, rule or regulation pertaining to air or water environmental protection enacted under Federal law, has been corrected or is in the process of being satisfactorily corrected. A permit issued under this paragraph on the basis that a violation is in the process of being corrected or pending the outcome of an appeal, and the appropriate regulatory authority program having jurisdiction over the violation provides for a stay of execution of the abatement procedure or a court of competent jurisdiction has issued a supersedeas providing that relief, will be issued conditionally.

   (12)  The applicant shall submit the bond required under Subchapter F prior to the issuance of the permit.

   (13)  The applicant has satisfied the requirements of §  87.53, §  88.32, §  88.491(k), §  89.121 or §  90.22.

   (14)  The proposed postmining land use of the permit area meets the requirements of §  87.159, §  88.89, §  88.183, §  88.289, §  88.493, §  89.88 or §  90.166.

   (15)  The proposed activities would not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats as determined under the Endangered Species Act of 1973 (16 U.S.C.A. § §  1531—1544).

   (16)  A statement from the applicant that State and Federal final civil penalty assessments have been paid. Final civil penalty assessments are civil penalty assessments which have not been appealed within 30 days of assessment or appealed civil penalty assessments which have been adjudicated by the EHB or other applicable judicial forum. For purposes of this subsection, civil penalty assessments include State and Federal civil penalty assessments related to coal mining activities which are assessed by one of the following:

     (i)   The Department under the authority of the acts.

     (ii)   The Federal Office of Surface Mining Reclamation and Enforcement (OSMRE) under the authority of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. § §  1201—1328).

     (iii)   A State regulatory authority which has been granted primary jurisdiction by OSMRE to implement the Federal coal mining regulatory program within its boundaries.

 (b)  An incremental phase approval of the permit will not be granted to conduct mining or reclamation operations or to expand mining or reclamation operations within a permit area if the Department has already issued an incremental phase approval for the area to another permittee, except for an area used for access or haul roads. An incremental phase approval of the permit will not 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 in accordance with §  86.143 (relating to requirements to file a bond).

   (2)  Meets the requirements of subsection (a)(7)—(9).

 (c)  After an application is approved, but before the permit is issued, the Department will reconsider its decision to approve the application, based on the compliance review required by subsection (a)(8), (10) and (11) in light of new information submitted under § §  86.62(d) and 86.63(c) (relating to identification of interests; and compliance information).

   The provisions of this §  86.37 amended under section 4.2(a) the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b(a)); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. §  30.53b); the Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § §  1406.1—1406.21); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  86.37 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 January 4, 1985, effective upon the granting of primary jurisdiction to the Commonwealth of Pennsylvania by the Secretary of the United States Department of Interior, 15 Pa.B. 13; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227; amended May 31, 2002, effective June 1, 2002, 32 Pa.B. 2686. Immediately preceding text appears at serial pages (244014) to (244016) and (281185) to (281186).

   Written Findings

   Although the language used in the written findings does not mirror that contained in §  86.37(a)(3) (relating to criteria for permit approval or denial), the record indicates that the Department utilized the appropriate standards. It was therefore not error for the Environmental Hearing Board to determine that the Department correctly concluded that there was no presumptive evidence of potential pollution to the waters of this Commonwealth. People United To Save Homes v. Department of Environmental Protection, 789 A.2d 319 (Pa. Cmwlth. 2001).

 (a)  An application for a permit or revision which proposes to use an existing structure in connection with or to facilitate the proposed activities will not be approved unless the applicant demonstrates and the Department finds, in writing, on the basis of the information set forth in the complete application that:

   (1)  The structure meets the standards of Chapter 87 Subchapter E; Chapter 88 Subchapters B—F; Chapter 89; or Chapter 90 Subchapter D.

   (2)  If the existing structure meets the performance standards of Chapter 87 Subchapter E; Chapter 88 Subchapters B—F; Chapter 89; or Chapter 90 Subchapter D, but does not meet the design requirements of Chapter 87 Subchapter E; Chapter 88 Subchapters B—F; Chapter 89; or Chapter 90 Subchapter D, no presumptive evidence of pollution to the environment or risk to public health or safety will result from use of the structure.

 (b)  Noncomplying existing structures shall be modified or reconstructed within 6 months after issuance of the permit; however, the Department may approve a longer period if the applicant demonstrates that:

   (1)  A longer period of time is necessary to modify or reconstruct the existing structure.

   (2)  The risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction.

 (a)  The Department will approve or deny an application within the following time limits:

   (1)  A complete application submitted under §  86.14(a) (relating to permit application filing deadlines) will be approved or denied within 8 months of the effective date of this chapter or within 60 days of an informal conference, if held.

   (2)  A complete application submitted under §  86.14(b) will be approved or denied within one of the following time limits:

     (i)   If an informal conference or public hearing has been held under §  86.34 (relating to informal conferences), within 60 days of the close of the conference or hearing unless deficiencies in the application continue to exist and the Department has allowed additional time for the applicant to submit additional information to resolve the deficiencies.

     (ii)   If no informal conference or public hearing has been held under §  86.34, then within a reasonable time not to exceed 60 days after the close of the public comment period, unless deficiencies in the application continue to exist and the Department has allowed additional time for the applicant to submit additional information to resolve the deficiencies.

 (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 and governmental official who filed a written objection or comment on the application. The Office of Surface Mining Reclamation and Enforcement will be given notice of the decision and provided a copy of a permit issued when requested.

   (2)  Publish a summary of 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.

 (a)  Each permit shall be issued for a fixed term not to exceed 5 years. A longer fixed permit term may be granted, if:

   (1)  The application is full and complete for the specified longer term.

   (2)  The applicant shows that a specified longer term is reasonably needed to allow the applicant to obtain necessary internal or external financing of equipment, facilities or structures for the opening or continuance of the operation, and this need is confirmed in writing by the applicant’s source for the financing.

 (b)  A permit shall terminate if the permittee has not begun the coal mining activities covered by the permit within 3 years of the issuance of the permit. However, 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.

 (c)  With respect to coal to be mined for use only in a synthetic fuel facility or specified major electric generating facility, the permittee shall be deemed to have commenced coal mining activities at the time that the construction of the synthetic fuel or generating facility is initiated.

 A permit issued by the Department is subject to the following conditions:

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

   (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 coal mining activities will or are being conducted.

   (3)  The permittee shall affect by coal mining activities only those lands specifically approved in the permit for which a bond has been filed with the Department in accordance with Subchapter F (relating to bonding and insurance requirements).

   (4)  The permittee shall pay all reclamation fees in accordance with 30 CFR Part 870 (relating to abandoned mine reclamation fees) for coal produced under the permit.

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

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

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

     (ii)   Providing warning, as soon as possible after learning of the noncompliance, to a person whose health and safety is in imminent danger due to the noncompliance.

   (2)  Permittee shall conduct the activities in accordance with measures specified in the permit as necessary to prevent environmental harm or harm to the health or safety of the public.

 (a)  For the purpose of this section and §  86.44 (relating to rescission of improvidently issued permits) ‘‘other person responsible’’ means a person owned or controlled by the permittee or a person who owns or controls the permittee under the definition of ‘‘owned or controlled’’ or ‘‘owns or controls’’ in §  86.1 (relating to definitions).

 (b)  A coal mining activity permit is improvidently issued if the following apply:

   (1)  Under the violation review criteria of §  86.37(a)(8), (9) and (11) (relating to criteria for permit approval or denial) in effect at the time of permit issuance one of the following applies:

     (i)   The Department should not have issued the permit because of an unabated violation or a delinquent penalty or fee of the permittee or other person responsible.

     (ii)   The permit was issued on the presumption that a violation by the permittee or other person responsible at the time of permit issuance was in the process of being corrected to the satisfaction of the Department, but a cessation order for that violation was subsequently issued.

   (2)  The violation, penalty or fee of the permittee or other person responsible:

     (i)   Remains unabated or delinquent.

     (ii)   Is not the subject of an agreement, abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the Department.

   (3)  At the time of permit issuance the violation, penalty or fee was to the other person responsible and the link between the permittee and that other person responsible still exists, or if the link to the other person responsible was severed, the permittee continues to be responsible for the violation, penalty or fee.

 (c)  If the Department has found that it improvidently issued a coal mining activity permit according to subsection (b), the Department will take one or a combination of the following actions:

   (1)  Enter into an agreement with the permittee or other person responsible for the abatement of the violation or a schedule of payment of the penalty or fee.

   (2)  Impose on the permit a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee.

   (3)  Suspend the permit until the violation is abated or the penalty or fee is paid.

   (4)  Rescind the permit under §  86.44.

   The provisions of this §  86.43 adopted June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075.

 (a)  To rescind an improvidently issued permit the Department will issue a notice of proposed suspension and rescission. The notice will:

   (1)  Describe the conditions under which the Department found the permit to have been improvidently issued.

   (2)  Suspend the permit after a period of time not to exceed 90 days from the date of the notice and no more than 90 days thereafter rescind the permit unless within those periods the permittee demonstrates and the Department finds that:

     (i)   The findings of the Department under §  86.43(b) (relating to improvidently issued permits) were erroneous.

     (ii)   The permittee or other person responsible has abated the violation on which the finding was based or paid the penalty or fee to the satisfaction of the responsible agency.

     (iii)   The violation, penalty or fee is the subject of a good faith appeal or of an agreement, abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency.

     (iv)   The permittee does not continue to be responsible for the violation, penalty or fee and has severed an ownership or control link with the other person responsible for the violation, penalty or fee.

 (b)  Upon suspension or rescission of the permit, the permittee shall cease coal mining activities under the permit except for violation abatement, reclamation and other environmental protection measures as required by the Department.

   The provisions of this §  86.44 adopted June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075.

   This section cited in 25 Pa. Code §  86.43 (relating to improvidently issued permits).

PERMIT REVIEWS, RENEWALS, REVISIONS AND TRANSFERS

§ 86.51. Reviews of active permits.

 (a)  The Department will review each permit issued and outstanding during the term of the permit. This review shall occur at the discretion of the Department during the permit term except as required by §  87.175 (relating to variance to contouring). For permits of longer than 5-year terms, a review of the permit shall be no less frequent than the permit midterm of every 5 years, whichev