Subchapter D. AREAS UNSUITABLE FOR MINING

§ 86.101. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Cemetery—An area of land where human bodies are interred.

   Community or institutional building—A structure other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment.

   Fragile lands—Geographic areas containing natural, ecologic, scientific or esthetic resources that could be significantly damaged or destroyed by surface mining operations. Examples include, but are not limited to, valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, paleontological sites, National Natural Landmark sites, areas where mining may cause flooding, environmental corridors containing a concentration of ecologic and esthetic features and areas of recreational value due to high environmental quality.

   Historic lands—Areas containing historic, cultural or scientific resources. Examples of historic lands include archaeological sites, properties listed on or eligible for listing on a State or National Register of Historic Places, National historic landmarks, properties having religious or cultural significance to native Americans or religious groups, and properties for which historic designation is pending.

   Natural hazard lands—Geographic areas in which natural conditions exist which pose, or as a result of surface mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, severe wind or soil erosion, frequent flooding, avalanches and areas of unstable geology.

   Public building—A structure that is owned or leased and principally used by a government agency for public business or meetings.

   Public park—An area or portion of an area dedicated or designated by a Federal, State or local agency primarily for public recreational use, whether or not the use is limited to certain times or days, including land leased, reserved or held open to the public because of that use.

   Publicly owned park—A public park owned by a Federal, State or local governmental agency.

   Renewable resource lands—Areas which contribute significantly to the long-range productivity of water supply or of food or fiber products. These lands include aquifers and aquifer recharge areas.

   Significant recreational, timber, economic or other values incompatible with surface mining operations—Significant values which could be damaged by, and are not capable of existing together with, surface mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on other affected areas which could be affected by mining. Values to be evaluated for their importance include:

     (i)   Nature recreation, including hiking, boating, camping, skiing, fishing, hunting or other related outdoor activities.

     (ii)   Timber management and silviculture.

     (iii)   Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce.

     (iv)   Scenic, historic, archaeologic, esthetic, fish, wildlife, plants or cultural interests.

   Substantial legal and financial commitments in a surface mining operation—Significant investments that have been made prior to January 4, 1977, on the basis of a long-term contract in power plants, railroads, mineral handling, preparation, extraction or storage facilities and other capital-intensive activities. Costs of acquiring the mineral in place or of the right to mine it without an existing mine are not sufficient commitments, standing alone, to constitute substantial legal and financial commitments.

   Surface mining operations—The extraction of coal 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 them or otherwise exposing and retrieving them from the surface, including, but not limited to, strip and auger mining, dredging, quarrying and leaching and surface activity connected with surface or underground coal mining, including, but not limited to, exploration, site preparation, entry, tunnel, slope, drift, shaft and borehole drilling and construction and activities related thereto, coal refuse disposal, coal processing and preparation facilities.

   The provisions of this §  86.101 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.101 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 June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (239627) to (239628) and (245121).

   The Clean Streams Law (35 P. S. § §  691.1—691.1001) authorizes the Department to regulate any type of mining that has a detrimental affect on the waters of the Commonwealth. Plumstead Township Civic Association v. Department of Environmental Resources, 597 A.2d 734 (Pa. Cmwlth. 1991).

 Subject to valid existing rights as defined in §  86.1 (relating to definitions), surface mining operations except those which existed on August 3, 1977, are not permitted:

   (1)  On lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C.A. §  1276(a)) or study rivers or study river corridors as established in guidelines under that act and National Recreation Areas designated by act of Congress.

   (2)  On Federal lands within the boundaries of a National forest. Surface mining operations may be permitted on the lands, if the Secretary of the United States Department of Interior and the Secretary find that there are no significant recreational, timber, economic or other values incompatible with surface mining operations and the surface mining operations and impacts are incident to an underground coal mine.

   (3)  Which will adversely affect a publicly-owned park or a place included on the National Register of Historic Places, unless approved jointly by the Department and the Federal, State or local governmental agency with jurisdiction over the park or places.

   (4)  On lands within the State park system. Surface mining activities may be permitted if the Department of Conservation and Natural Resources and the Department find that significant land and water conservation benefits will result when remining of previously mined land is proposed.

   (5)  On lands within State forest picnic areas, State forest natural areas and State forest wild areas. Surface mining operations may be permitted on State forest lands other than picnic areas, natural areas and wild areas, if the Department of Conservation and Natural Resources and the Department find that one or more of the following apply:

     (i)   There will be no significant adverse impact to natural resources, including timber, water, wildlife, recreational and aesthetic values.

     (ii)   Significant land and water conservation benefits will result when remining of previously mined lands is proposed.

   (6)  On lands within the game land system of this Commonwealth. Surface mining operations may be permitted by the Department if the Game Commission consents and finds that one or more of the following apply:

     (i)   There will be no significant long-term adverse impacts to aquatic or terrestrial wildlife populations and their habitats.

     (ii)   Significant wildlife habitat and land and water conservation benefits will result when remining of previously mined lands is proposed.

   (7)  On lands within the authorized boundaries of Pennsylvania Scenic River Systems which have been legislatively designated as such under the Pennsylvania Scenic Rivers Act (32 P. S. § §  820.21—820.29). Surface mining operations may be permitted if the Department of Conservation and Natural Resources and the Department find that significant land and water conservation benefits will result when remining of previously mined lands is proposed, and that the surface mining operation is consistent with the Scenic Rivers System designation and will not adversely affect the values which the designation is designed to protect.

   (8)  Within 100 feet (30.48 meters) measured horizontally of the outside right-of-way line of a public road, except:

     (i)   For mine access roads or haulage at the point where they join the right-of-way lines.

     (ii)   When the Department, with concurrence of the agency with jurisdiction over the road, allows the public road to be relocated or the area affected to be within 100 feet (30.48 meters) of the road, after the following:

       (A)   Public notice and opportunity for a public hearing in accordance with §  86.103(c) (relating to procedures).

       (B)   Making a written finding that the interests of the affected public and landowners will be protected.

   (9)  Within 300 feet (91.44 meters) measured horizontally from an occupied dwelling, unless one or more of the following exist:

     (i)   The only part of the surface mining operations which is within 300 feet (91.44 meters) of the dwelling is a haul road or access road which connects with an existing public road on the side of the public road opposite the dwelling.

     (ii)   The owner thereof has provided a written waiver by lease, deed or other conveyance clarifying that the owner and signatory had the legal right to deny surface mining operations and knowingly waived that right and consented to surface mining operations closer than 300 feet (91.44 meters) of the dwelling as specified.

       (A)   A valid waiver shall remain in effect against subsequent owners who had actual or constructive knowledge of the existing waiver at the time of purchase.

       (B)   Subsequent owners shall be deemed to have constructive knowledge if the waiver has been properly filed in public property records or if the surface mining operations have proceeded to within the 300 foot (91.44 meters) limit prior to the date of purchase.

     (iii)   A new waiver is not required if the applicant for a permit had obtained a valid waiver prior to August 3, 1977, from the owner of an occupied dwelling to mine within 300 feet (91.44 meters) of the dwelling.

   (10)  Within 300 feet (91.44 meters) measured horizontally of a public building, school, church, community or institutional building or public park.

   (11)  Within 100 feet (30.48 meters) measured horizontally of a cemetery. Cemeteries may be relocated under the act of April 18, 1877 (P. L. 54, No. 54) (9 P. S. § §  41—52)).

   (12)  Within 100 feet (30.48 meters) measured horizontally of the bank of a perennial or intermittent stream. The Department may grant a variance from this distance requirement if the operator demonstrates beyond a reasonable doubt that there will be no adverse hydrologic impacts, water quality impacts or other environmental resources impacts as a result of the variance. The variance will be issued as a written order specifying the methods and techniques that shall be employed to prevent adverse impacts. Prior to granting a variance, the operator is required to give public notice of application thereof in two newspapers of general circulation in the area once a week for 2 successive weeks. If a person files an exception to the proposed variance within 20 days of the last publication thereof, the Department will conduct a public hearing with respect thereto. The Department will also consider information or comments submitted by the Fish and Boat Commission prior to taking action on a variance request.

   The provisions of this §  86.102 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.102 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 September 5, 1986, effective September 6, 1986, 16 Pa.B. 3288; 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 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (245122) to (245123) and (223533) to (223534).

 (a)  Upon receipt of a complete permit application for surface mining operations, the Department will review the application to determine whether the surface mining operations are limited or prohibited under §  86.102 (relating to areas where mining is prohibited or limited) on the lands which would be disturbed by the proposed operation.

 (b)  If the proposed surface mining operations would include Federal lands within the boundaries of a National forest, and the applicant seeks a determination that mining is permissible under §  86.102(2), the applicant shall submit a permit application to the Regional Director of the Office of Surface Mining Reclamation and Enforcement and the Department for processing under 30 CFR Chapter 7, Subchapter D (relating to Federal lands program). Approval from the Director is required before a permit may be issued by the Department.

 (c)  If the proposed surface mining operations are to be conducted within 100 feet (30.48 meters) measured horizontally of the outside right-of-way line of a public road—except where mine access road or haulage roads join the right-of-way line—or if the applicant proposes to relocate a public road, the Department will:

   (1)  Require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road.

   (2)  Provide notice in a newspaper of general circulation in the affected locale of a public hearing, if one has been requested, at least 2 weeks before the hearing.

   (3)  Insure that an opportunity for a public hearing has been afforded in the locality of the proposed surface mining operations, at which members of the public may participate, for the purpose of determining whether the interests of the public and affected landowners will be protected.

   (4)  Review the information received at the public hearing, if one has been held, and the findings of applicable State and local agencies as to whether the interests of the public and affected landowners will be protected from the proposed surface mining operations.

 (d)  When the proposed surface mining operations would be conducted within 300 feet (91.44 meters) measured horizontally of any occupied dwelling, the applicant shall submit with the application a written waiver as specified in §  86.102(9).

 (e)  When the proposed surface mining operations will adversely affect a publicly owned park or a place included on the National Register of Historic Places, the Department will transmit to the Federal, State or local agencies with jurisdiction over, or a statutory or regulatory responsibility for, the park or place, a copy of the completed permit application containing the following:

   (1)  A request for that agency’s approval or disapproval of the surface mining operations.

   (2)  A notice to the appropriate agency that it shall respond within 30 days from receipt of the request.

     (i)   Upon request by the appropriate agency, a 30-day extension may be granted.

     (ii)   Failure to object within the comment period constitutes an approval of the proposed permit by that agency.

 (f)  If the Department determines that the proposed surface mining operations are not prohibited under §  86.102, it may nevertheless, pursuant to appropriate petitions, designate the lands as unsuitable for all or certain types of surface mining operations under § §  86.121—86.129.

   The provisions of this §  86.103 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.103 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (223534) to (223535).

   This section cited in 25 Pa. Code §  86.34 (relating to informal conferences); and 25 Pa. Code §  86.102 (relating to areas where mining is prohibited or limited).

CRITERIA AND PROCEDURES FOR DESIGNATING AREAS AS
UNSUITABLE FOR SURFACE MINING

§ 86.121. Areas exempt from designation as unsuitable for surface mining operations.

 This section and § §  86.122—86.129 do not apply to areas on which:

   (1)  Surface mining operations were being conducted on August 3, 1977.

   (2)  Surface mining operations have been authorized by a valid permit issued under The Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a), the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66), The Clean Streams Law (35 P. S. § §  691.1—691.1001) or The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § §  1406.1—1406.21).

   (3)  A person establishes that substantial legal and financial commitments in surface mining operations were in existence prior to January 4, 1977.

   The provisions of this §  86.121 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.121 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (223535) to (223536).

 (a)  Upon petition, an area shall be designated as unsuitable for all or certain types of surface mining operations if the Department determines that reclamation is not technologically and economically feasible.

 (b)  Upon petition, an area may be designated as unsuitable for all or certain types of surface mining operations if the surface mining operations will:

   (1)  Be incompatible with existing Commonwealth or local land use plans or programs.

   (2)  Affect fragile or historic lands in which the surface mining operations could result in significant damage to important historic, cultural, scientific or esthetic values or natural systems.

   (3)  Affect renewable resource lands in which the surface mining operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products.

   (4)  Affect natural hazard lands in which the surface mining operations could substantially endanger life and property, the lands to include areas subject to frequent flooding and areas of unstable geology.

   The provisions of this §  86.122 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962. Immediately preceding text appears at serial page (198830).

 (a)  A person who has an interest which is, or may be, adversely affected has the right to petition the Department to have an area designated as unsuitable for surface mining operations or to have an existing designation terminated.

 (b)  Under the procedures in this section, the Department may initiate proceedings seeking to have an area designated as unsuitable for surface mining operations or to have the designation terminated.

 (c)  The petitioner shall provide the following information on forms developed by the Department:

   (1)  The location and approximate size of the area covered by the petition, utilizing property or boundary lines or landmarks, and including a 7 1/2-minute topographic map published by the United States Geological Survey with the perimeter of the area shown thereon.

   (2)  Allegations of facts and supporting evidence which would tend to establish that the areas are unsuitable for all or certain types of surface mining operations assuming that contemporary mining practices required under applicable regulatory practices would be followed if the area were to be mined.

   (3)  A description of how mining of the area has affected or may adversely affect people, land, air, water or other resources.

   (4)  The petitioner’s name, address, telephone number and notarized signature.

   (5)  Identification of the petitioner’s interest which is or may be adversely affected. A person having an interest which is or may be adversely affected shall demonstrate an ‘‘injury in fact’’ by describing the injury to the specific affected interest and demonstrating how they are among the injured.

 (d)  A person who has an interest which is or may be adversely affected may petition to terminate a designation. The petition shall contain:

   (1)  The location and size of the area covered by the petition, including a 7 1/2-minute topographic map published by the United States Geologic Survey with the perimeters of the area shown thereon.

   (2)  Allegations of newly discovered facts, with newly discovered supporting evidence, not contained in the record of the proceeding in which the area was designated unsuitable, and which were unavailable at that time, which evidence would tend to establish the statements or allegations, and which statements or allegations indicate that the designation should be terminated based on one or more of the following:

     (i)   The nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in §  86.122(b) (relating to criteria for designating lands as unsuitable).

     (ii)   Reclamation now being technologically and economically feasible, if the designation was based on the criteria found in §  86.122(a)

     (iii)   The resources or condition not being affected by surface mining operations, or in the case of land use plans, not being incompatible with surface mining operations during and after mining, if the designation was based on the criteria found in §  86.122(b).

   (3)  The petitioner’s name, address and telephone number.

   (4)  Identification of the petitioner’s interest which is or may be adversely affected by the continuation of the designation.

   The provisions of this §  86.123 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.123 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (238929) to (238930).

 (a)  Within 30 days of receipt of a petition, the Department will notify the petitioner by certified mail whether or not the petition is complete as required by §  86.123 (relating to procedures: petitions). If the 30-day requirement of this subsection cannot be met due to the staff limitations of the Department, the Department may process the petitions in accordance with the priority system authorized by subsection (b)(2). Within this 30-day period, the Department will also notify an applicant with pending surface mining operation permit applications in the area covered by the petition.

   (1)  The Department will determine whether identified coal resources exist in the area covered by the petition. If the Department finds there are not identified coal resources in that area, it may return the petition to the petitioner with a statement of the findings.

   (2)  The Department may reject petitions for designations or terminations of designations which are frivolous. A frivolous petition is one in which the allegations of harm lack serious merit. Once the requirements of §  86.123 are met, each accepted petition will be considered and acted upon by the Department under the procedures of this part.

   (3)  When considering a petition for an area which was previously and unsuccessfully proposed for designation, the Department will determine if the new petition presents new allegations of fact. If the petition does not contain new allegations of fact, the Department will refuse to consider the petition and may return the petition to the petitioner, with a statement of its findings and a reference to the record of the previous designation proceedings when the facts were considered.

   (4)  If the Department determines that the petition is frivolous, it will return the petition to the petitioner, with a written statement of the reasons for the determination. If the petition is incomplete, the Department will indicate the categories of information needed to make the petition complete. The Department will hold the incomplete petition until the petitioner has been given 30 days to make the application complete.

   (5)  The Department will notify the person who submits a petition of an application for a permit received which proposes to include an area covered by the petition.

   (6)  The Department may determine not to process any petition for a designation under §  86.122 (relating to criteria for designating lands as unsuitable) insofar as it pertains to an area for which an administratively complete surface mining operation permit application has been filed and the first newspaper notice has been published. The Department will provide written notice to the petitioner with a statement of its findings. Once a petition has been returned to the petitioner under this section, the Department may proceed to issue a decision on a permit application received for mining in the area included within the petition.

 (b)  Within 3 weeks after the determination that a petition is complete, the Department will send notice of receipt of the petition to, and request submissions of relevant information from, other interested governmental agencies, the petitioner, intervenors and other persons known to the Department to own or have an interest in the property.

   (1)  Within 3 weeks after the determination that a petition is complete, the Department will notify the general public of the receipt of the petition and request submissions of relevant information by a newspaper advertisement placed once a week for 2 consecutive weeks in the locale of the area covered by the petition, in the newspaper of largest circulation in the region, and in the Pennsylvania Bulletin.

   (2)  The Department may establish a priority system to decide the order in which petitions or classes of petitions submitted under this section will be processed. A high priority will be given to petitions which include areas where surface mining operation permit applications are pending.

 (c)  Until 3 days before the Department holds a hearing under §  86.125 (relating to procedures: hearing requirements), a person may become an intervenor in the proceeding by filing allegations of facts describing how the designation determination directly affects the intervenor, supporting evidence, a short statement identifying the petition to which the allegations pertain, a request for intervenor status and the name, address and telephone number.

 (d)  Beginning immediately after a complete petition is filed, the Department will compile and maintain a record consisting of documents relating to the petition filed with or prepared by the Department. The Department will make the record available for public inspection free of charge, and copying at reasonable cost, during normal business hours at the Department’s district mining office in the county or multicounty area in which the land petitioned is located, and at the main office of the Department.

 (e)  Prior to designating land areas unsuitable for surface mining operations, the Department will prepare a detailed statement, using existing and available information on the potential resources of the area, the demand for resources, and the impact of the designation on the environment, the economy and the supply of coal.

 (f)  The Department will prepare a recommendation on each complete petition received under this section and submit it to the EQB within 12 months of receipt of the complete petition.

   The provisions of this §  86.124 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.124 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended November 28, 1997, effective November 29, 1997, 27 Pa.B. 6186; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (238930) to (238932).

 (a)  Within 10 months of the receipt of a complete petition, the Department will hold a public hearing in the locality of the area covered by the petition. If all petitioners and intervenors agree, the hearing need not be held.

 (b)  The hearing shall be legislative and fact-finding in nature, without cross examination of witnesses.

 (c)  No person will bear the burden of proof or persuasion.

 (d)  A verbatim transcript of the hearing will be made and included in the public record.

 (e)  The Department will give notice of the date, time and location of the hearing by first class mail postmarked not less than 30 days before this scheduled hearing to:

   (1)  Local, State and Federal agencies which may have an interest in the decision on the petition.

   (2)  Persons known to the Department to have an ownership or other interest in the area covered by the petition.

 (f)  The Department will give notice of the date, time and location of the hearing by certified mail postmarked not less than 30 days before the scheduled hearing to the petitioner and to the intervenors.

 (g)  The Department will notify the general public of the date, time and location of the hearing by placing a newspaper advertisement once a week for 2 consecutive weeks in the locale of the area covered by the petition and once during the week prior to the scheduled date of the public hearing. The consecutive weekly advertisement will begin between 4 and 5 weeks before the scheduled date of the public hearing.

 (h)  The Department may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale.

 (i)  Written comments on the petition will be received and considered 15 days after the conclusion of the public hearing. If a hearing will not be held on a petition, the comments may be received and considered for 45 days following publication of a notice that there will be no public hearing.

 (j)  Within 60 days of the close of the public comment period, the Department will prepare a recommendation to the EQB, including a statement of the reasons for the recommendation and provide written notice of its recommendation to the petitioner and intervenors.

 (k)  If all petitioners and intervenors so stipulate, the petition may be withdrawn from consideration prior to the hearing.

   The provisions of this §  86.125 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.125 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (238932) and (223541).

 (a)  In deciding whether to designate an area as unsuitable for surface mining operations, the EQB will consider:

   (1)  The information contained in the database and inventory system.

   (2)  Information provided by other governmental agencies.

   (3)  The detailed statement prepared under §  86.124(e) (relating to procedures: initial processing, recordkeeping and notification requirements).

   (4)  Oral and written testimony received during and written testimony received subsequent to public hearing.

   (5)  The recommendations of the Department.

 (b)  The EQB will promptly send the decision by certified mail to the petitioner, intervenors and to the Office of Surface Mining Reclamation and Enforcement.

   (1)  If the decision is to designate an area as unsuitable for surface mining operations, the EQB will deposit and publish its decision as a regulation in the manner required by the Regulatory Review Act (71 P. S. § §  745.1—745.15); the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § §  1102, 1201—1208 and 1602) known as the Commonwealth Documents Law and 45 Pa.C.S. Part I (relating to publication and effectiveness of Commonwealth documents).

   (2)  If the decision is not to designate an area as unsuitable for surface mining operations, the EQB will publish its decision in the Pennsylvania Bulletin within 30 days.

   The provisions of this §  86.126 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.126 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (223541) to (223542).

 (a)  The Department will expeditiously develop a database and inventory system which will permit evaluation of whether reclamation is feasible in areas covered by petitions.

 (b)  The Department will include in the system information relevant to the criteria in §  86.122 (relating to criteria for designating lands as unsuitable), including, but not limited to, information received from the United States Fish and Wildlife Service, the State Historic Preservation Office, the Fish and Boat Commission, the Department of Conservation and Natural Resources’ Scenic Rivers Program, the Game Commission, private conservancies and the agency administering section 127 of the Clean Air Act (42 U.S.C.A. §  7470).

 (c)  The Department will review and update the database and inventory system as information becomes available:

   (1)  On potential mineral resources of this Commonwealth, demand of the resources, the environment, the economy and the supply of minerals sufficient to enable the Department to prepare the statements required by §  86.124(e) (relating to procedures: initial processing, recordkeeping and notification requirements).

   (2)  From petitions, publications, experiments, permit applications, mining and reclamation operations and other sources.

   The provisions of this §  86.127 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.127 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (223542) to (223543).

 The Department will:

   (1)  Make the information and database system developed under §  86.127 (relating to database and inventory system requirements) available to the public for inspection free of charge and for copying at reasonable cost during established office hours.

   (2)  Provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of surface mining operations or to have designations terminated and describe how the inventory and database system can be used.

   (3)  Maintain a map of areas designated as unsuitable for all or certain types of surface mining operations.

   (4)  Make available to persons information within its control regarding designation or terminations, including mineral or elemental content which is potentially toxic in the environment. Other information which is properly classified as proprietary or confidential will be protected by the Department as may be required by law.

   The provisions of this §  86.128 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.128 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 December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial page (223543).

 (a)  Designation of an area as unsuitable for all or certain types of surface mining operations under this chapter does not prohibit coal exploration operations in the area.

 (b)  Coal exploration may be conducted on an area designated as unsuitable for surface mining operations in accordance with this chapter if the following apply:

   (1)  The exploration is consistent with the designation.

   (2)  The exploration will be conducted to preserve and protect the applicable values and uses of the area under Subchapter E (relating to coal exploration) and the Department has issued written approval for the exploration.

   The provisions of this §  86.129 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.129 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 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (223543) to (223544).

 (a)  Under the criteria and procedures in § §  86.121—86.129, the EQB has designated the areas described in subsection (b) as unsuitable for all or certain types of surface mining operations.

 (b)  The following is a list of descriptions of areas which are unsuitable for all or certain types of surface mining operations and where all or certain types of surface mining operations will not be permitted:

   (1)  The tract of approximately 233 acres (approximately 94.29 hectares) in Blacklick Township, Cambria County, described as follows:

  Beginning at the northwest corner of the land owned by the Griffithtown Water Association and proceeding to the southwest corner, then easterly towards the southeast corner of the property and continuing in the same easterly direction to a point located 100 feet (30.48 meters) horizontal distance west of the Lower Freeport outcrop; then continuing in a southerly direction, remaining 100 feet (30.48 meters) from and paralleling the Lower Freeport outcrop as the outcrop proceeds easterly to intersect the 2,040 foot (621.79 meter) elevation contour; then along a straight line extending in a northeasterly direction intersecting the 2,282-foot (695.55 meter) elevation point and continuing to US 422; then west along US 422 to an intersection formed by a road, driveway or farmlane approaching US 422 from the north and located approximately 1.86 miles east (approximately 2.99 kilometers) of the junction of US 422 and Pa. Route 271 in Belsano; then continuing southwesterly in a straight line to the northwest corner of the Griffithtown Water Association property.

   (2)  The surface area overlying surface mineable coal reserves in a tract of approximately 11,200 acres (approximately 4,532 hectares) in Rush Township, Centre County, which tract is described as follows:

   The surface water drainage basin of Cold Stream upstream from the mouth of Tomtit Run, including the surface water drainage basins of all tributaries to Cold Stream upstream from and including Tomtit Run except for the surface water drainage of a tributary known locally as Big Spring Run that enters Cold Stream from the west approximately 500 feet (approximately 152.4 meters) upstream from the Stony Point Road (Township Road 600) bridge over Cold Stream.

   (3)  The tract of approximately 119 acres (approximately 48.16 hectares) in Logan Township, Blair County and Gallitzin Township, Cambria County within the Mill Run watershed, that is underlain by surface mineable coal reserves, and that has not been previously disturbed by surface or deep mining. The tract is more particularly described as follows:

  Beginning at the summit of a hill in the northwest corner of the Mill Run-Little Laurel Run watershed divide, southwest of the village of Buckhorn on or near the Cambria-Blair County line, and being at the eastern edge of the previously surface mined area; then along the watershed divide in a northeasterly direction for a distance of approximately 2,500 feet (approximately 762 meters) to the point of intersection of the watershed divide with the Mercer coal seam outcrop; then proceeding in a southeasterly and southerly direction along the Mercer coal outcrop, and running roughly parallel to and 100 to 200 feet (30.48 to 60.96 meters) easterly of the old Louden deep mine railroad grade, for a distance of approximately 5,500 feet (approximately 1.68 kilometers) to the northern terminus of the Louden deep mine, then proceeding westerly and northwesterly along the edge of the Louden deep mine, exclusive of an approximately 2-acre (approximately 0.81 hectares) ungraded surface mine, to its intersection with the toe of spoil of the previously surface mined area; then in a northwesterly direction along the spoil banks remaining from previous surface mining activity a distance of approximately 3,800 feet (approximately 1.16 kilometers) to the summit of the hill, being the place of beginning.

   (4)  The surface mineable coal reserves in a tract of approximately 5,600 acres (approximately 2,266.32 hectares) in Rush, Centre County, which tract is the surface water drainage basin of Black Bear Run.

   (5)  The surface mineable coal reserves in the surface water drainage basin of Powell Run that are situated east of Pa. Route 865, which tract is located in Reade Township, Cambria County and Antis Township, Blair County.

   (6)  The surface mineable coal reserve in the surface water drainage basin of Byrnes Run, which tract is located in Jay and Fox Townships, Elk County.

   (7)  The surface mineable coal reserves of the Lower Kittanning, Clarion No. 1, Clarion No. 2 and Mercer coal seams in the surface water drainage basin of the upper portion of Little Muddy Run located above the Janesville Dam, which tract is located in Gulich Township, Clearfield County and Reade Township, Cambria County; except that the surface mineable coal reserves of the four designated seams, located in the recharge area for identified preexisting pollutional discharges to Little Muddy Run are not designated unsuitable for surface mining operations authorized under Chapter 87, Subchapter F (relating to surface coal mines: minimum requirements for remining areas with pollutional discharges) which governs the remining of areas having preexisting pollutional discharges.

   (8)  The surface mineable coal reserves in the surface water drainage basin of Rogues Harbor Run, which tract is in Chest Township, Clearfield County, and Chest Township, Cambria County, except Upper Freeport coal within that tract.

   (9)  The tract of approximately 525 acres (approximately 212.46 hectares) in Elder Township, Cambria County, described as follows:

  Beginning at the northern edge of a raw water storage tank located approximately 2,000 feet (approximately 609.60 meters) south of Township Route 551 and 2,150 feet (655.32 meters) west of State Route 36; then proceeding in a northeasterly direction, intersecting the Borough of Hastings Water Authority access road at a point approximately 1,450 feet (approximately 441.96 meters) from the access road’s junction with Township Route 551; then continuing due north, intersecting Township Route 551 at a property, fence or tree line located approximately 1,250 feet (approximately 381 meters) west of the junction of Township Route 551 and State Route 36; then north along the property, fence or tree line to a point located on Legislative Route 221 approximately 1,100 feet (approximately 335.28 meters) west of State Route 36 in St. Boniface; then continuing in a southeasterly direction to the junction of State Route 36 and Legislative Route 11056; then along Legislative Route 11056 to a point approximately 1,300 feet (approximately 396.24 meters) east of State Route 36; then continuing south along a property, fence or tree line to another property, fence or tree line that is approximately 475 feet (approximately 144.78 meters) south of Legislative Route 11056; then 575 feet (175.26 meters) due west along this property, fence or tree line to a point located approximately 350 feet (approximately 106.68 meters) east of State Route 36; then due south to meet State Route 36 at its junction with a private road, driveway or farm lane approaching State Route 36 from the east, located approximately 950 feet (approximately 289.56 meters) south of the junction of Township Route 551 and State Route 36; then south along State Route 36 for approximately 900 feet (approximately 274.32 meters) to a tree, fence or property line; then along the line, intersecting the Laurel Hill anticline axis at a point approximately 1,575 feet (approximately 480.06 meters) due east of State Route 36; then south along the anticlinal axis (which trends approximately N 40° E) intersecting State Route 36 approximately 625 feet (approximately 190.5 meters) north of the junction of Legislative Routes 221 and 11077 and intersecting Legislative Route 11076 approximately 600 feet (approximately 182.88 meters) north of its junction with Legislative Routes 221 and 11067 for 6,800 feet (2,072.64 meters) to a point approximating the edge of an Upper Kittanning underground coal mine complex known as the Pardee No. 29; then continuing in the same southwesterly direction to a point located 200 feet (60.96 meters) horizontal distance southwest of the Pardee No. 29 Mine complex; then proceeding in a northerly direction remaining 200 feet (60.96 meters) from and paralleling the edge of the Pardee No. 29 Mine complex for approximately 4,250 feet (approximately 1,295.4 meters) to a point that is approximately 200 feet (approximately 61.96 meters) horizontal distance west of the Upper Kittanning coal outcrop (intersecting an unnamed tributary to a farm pond located approximately 3,300 feet (approximately 1,005.84 meters) due south of Township Route 551 and 3,300 feet (1,005.84 meters) due west of State Route 36); then continuing north, remaining 200 feet (60.96 meters) from and parallel to the coal outcrop to a property, fence or tree line located approximately 1,820 feet (approximately 554.74 meters) south of Township Route 551; then due east along the line to the northwest corner of the land owned by the Borough of Hastings; then returning to the point of origin.

   (10)  The tract of 527 acres (213.28 hectares) of surface mineable coal reserves in the southern surface water drainage basin of North Fork Tangascootack Creek watershed. The 527 acres (213.28 hectares) encompass the Mercer coal crop line to the southern watershed divide of the North Fork Tangascootack Creek watershed, which tract is located in Bald Eagle, Grugan and Beech Creek Townships, Clinton County.

   (11)  The surface mineable coals within the Montgomery Creek and Moose Creek watersheds upstream of the Clearfield Municipal Authority’s public water supply reservoir dams. The two tracts are located in parts of Lawrence, Pike and Pine Townships, Clearfield County.

   (12)  The surface mineable coal reserves in the surface water drainage basins of Rankin Hollow Run and the East Fork Brewster Hollow Run, tributaries of Sixmile Run, upstream of the water supplies for the Coaldale Borough-Six Mile Run Area Water Corporation. The two tracts, totaling approximately 525 acres (approximately 212.47 hectares), are located in Broad Top Township, Bedford County.

   (13)  The surface mineable coal reserves of the Lower Kittanning, Clarion and Mercer coals in the surface water drainage basin of Bells Gap Run, which tract is located in Antis and Logan Townships, Blair County and Dean and Reade Townships, Cambria County; except that the surface mineable coal reserves of the three designated seams are not designated unsuitable for surface mining operations in the following areas:

     (i)   A tract of approximately 41 acres (approximately 16.59 hectares) of abandoned mine lands located northwest of the town of Highland Fling, said tract being described as follows:

  Beginning at the point where Township Route 502 intersects the surface water drainage divide between Tubb Run and Brubaker Run approximately 750 feet (approximately 228.6 meters) northwest of the intersection of Township Route 502 and State Route 1016; then proceeding due east, to a point on State Route 1016 approximately 475 feet (approximately 144.78 meters) north-northeast of the intersection of State Route 1016 and Township Route 502; then continuing to a point approximately 2,250 feet (approximately 685.8 meters) north along State Route 1016; then due west to a point on the surface water drainage divide between Tubb Run and Brubaker Run approximately 2,800 feet (approximately 853.44 meters) north-northwest of the intersection of Township Route 502 and State Route 1016; then in a southerly direction along the said surface water drainage divide to the point of origin.

     (ii)   The permit areas of Cambria Coal Company SMP #11783035, Cambria Coal Company SMP #11823006, Swistock Associates Coal Corp. MDP #4278BC10, E. P. Bender Coal Co. SMP #11793025, and Benjamin Coal Company MDP #4278SM2, in accordance with §  86.121 (relating to areas exempt from designation as unsuitable for surface mining operations).

   (14)  The surface mineable coal reserves within the Goss Run watershed upstream of the Brisbin Dam, including a small tract of land within the watershed of the West Tributary to Goss Run, a total of approximately 555 acres (approximately 224.61 hectares), are designated unsuitable for all types of surface mining operations. This includes a land area beginning at the breast of the Brisbin Dam, thence due southwest to Pa. Route 153, thence north along the centerline of Pa. Route 153 to the intersection of Pa. Route 153 with township route T-657, thence north along the watershed divide between the Brisbin Dam drainage and the West Tributary drainage to a point at the intersection of the Goss Run and Little Beaver Run watershed divide, thence southwest along the Goss Run and Little Beaver Run watershed divide to a point at the intersection of the Brisbin Dam drainage divide, thence southwest along the Brisbin Dam drainage divide to the point of beginning; except that the surface mineable coal reserves are not designated unsuitable for surface mining operations in the following areas:

  The permit areas of the James I. Cowfer Contracting, Inc. SMP 17663037 and James I. Cowfer Contracting, Inc. SMP 17820152, in accordance with §  86.121.

   (15)  The surface mineable coal reserves within the entire Paddy Run watershed, all surface mineable coal reserves within the Drury Run watershed occurring upstream of the Drury Run reservoir, and all surface mineable coals within the Drury Run watershed which occur within the Woodley Draft sub-basin and within the Slab Hollow drainage of the Stony Run sub-basin. These areas are located in Chapman, Leidy and Noyes Townships, Clinton County.

   (16)  The surface mineable coal reserves of the Lower Kittanning, Clarion and Brookville coals in the surface water drainage basin of Laurel Run, which tract is located in Jackson, West Taylor and Middle Taylor Townships, Cambria County.

   (17)  All types of surface mining operations within a tract of 450 acres (182.12 hectares) located in Slippery Rock and Wayne Townships, Lawrence County described as follows:

  Beginning at the intersection of Township Road T-347 and Township Road 5-472; then in a northerly direction following Township Road T-472 for a distance of approximately 4,800 feet (approximately 1,643.04 meters) to the Wayne Township and Slippery Rock Township boundary line; then in a westerly direction following the township line for a distance of approximately 800 feet (approximately 243.84 meters) to the southwest corner of a land parcel owned, or formerly owned, by Edris Ann Thalgott; then in a northerly direction following the Edris Ann Thalgott property line for a distance of approximately 2,050 feet (approximately 624.84 meters) to the southwest corner of a land parcel owned, or formerly owned, by Lois Mackey; then following the Lois Mackey property line in a northerly direction for a distance of approximately 950 feet (approximately 289.56 meters) to the intersection of the Lois Mackey property line with State Road SR2024; then in an easterly direction following State Road SR 2024 for a distance of approximately 2,100 feet (approximately 640.08 meters) to the intersection with the southwest corner of a land parcel owned, or formerly owned, by Dale Mackey; then in a northerly direction following the Dale Mackey property line for a distance of approximately 1,650 feet (approximately 502.92 meters) to the northwest corner of the Dale Mackey property; then in an easterly direction following the Dale Mackey property line for a distance of approximately 600 feet (approximately 182.88 meters) to the northeast corner of the Dale Mackey property; then following the Dale Mackey property line in a southerly direction for a distance of approximately 1,250 feet (approximately 381.00 meters) to the Dale Mackey property line intersection with the northeast corner of a land parcel owned, or formerly owned, by Richard E. Michaels; then following the Richard E. Michaels property line in a southerly direction for a distance of approximately 250 feet (approximately 76.20 meters) to the Richard E. Michaels property line intersection with State Road SR 2024; then following Township Road T-478 in a southerly direction for a distance of approximately 7,200 feet (approximately 2,194.56 meters) to the intersection of Township Road T-478 with Township Road T-347; then in a westerly direction following Township Road T-347 for a distance of approximately 2,000 feet (approximately 609.60 meters) to the point of origin.

   The provisions of this §  86.130 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66); The Clean Streams Law (35 P. S. § §  691.1—691.1001); sections 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20 and 510-30).

   The provisions of this §  86.130 adopted September 30, 1983, effective October 1, 1983, 13 Pa.B. 2968; amended February 10, 1984, effective February 11, 1984, 14 Pa.B. 446; amended July 20, 1984, effective July 21, 1984, 14 Pa.B. 2667; amended July 20, 1984, effective July 21, 1984, 14 Pa.B. 2670; amended April 11, 1986, effective April 12, 1986, 16 Pa.B. 1274; amended May 23, 1986, effective May 24, 1986, 16 Pa.B. 1810; amended February 19, 1988, effective February 20, 1988, 18 Pa.B. 761; amended May 6, 1988, effective May 7, 1988, 18 Pa.B. 2094; amended August 19, 1988, effective August 20, 1988, 18 Pa.B. 3695; amended September 30, 1988, effective October 1, 1988, 18 Pa.B. 4411; amended September 30, 1988, effective October 1, 1988, 18 Pa.B. 4413; amended June 23, 1989, effective June 24, 1989, 19 Pa.B. 2642; amended August 24, 1990, effective August 25, 1990, 20 Pa.B. 4483; amended May 22, 1992, effective May 23, 1992, 22 Pa. B. 2715; amended October 9, 1992, effective October 10, 1992, 22 Pa.B. 5024; amended October 16, 1992, effective October 17, 1992, 22 Pa.B. 5159; amended December 13, 1996, effective December 14, 1996, 26 Pa.B. 5960; amended December 13, 1996, effective December 14, 1996, 26 Pa.B. 5962; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289. Immediately preceding text appears at serial pages (223544) to (223546) and (244031) to (244033).

   Nuisance

   If the Commonwealth can demonstrate that proposed use of stream would unreasonably interfere with the public right to unpolluted water, the use is a nuisance and may be prohibited by the Commonwealth without compensation. Machipongo Land and Coal Co., Inc. v. Commonwealth, 799 A.2d 751 (Pa. 2002).

   Taking

   The regulation which designated a defined tract as unsuitable for mining was not a taking with respect to surface mining, as evidence confirmed that surface mining there was economically unfeasible. The Pennsylvania Supreme Court established a regulatory takings test, upheld a regulation with respect to one property and remanded the matter for further determination. The matter was remanded for a determination of the horizontal extent of the property of other property owners, to perform a takings analysis under Lucas and Penn Central, and, if necessary, to determine if the proposed use of the property would constitute a nuisance or otherwise violate state property law. Machipongo Land and Coal Co., Inc. v. Commonwealth, 799 A.2d 751 (Pa. 2002).

   This section cited in 25 Pa. Code §  86.6 (relating to extraction of coal incidental to government-financed construction or government-financed reclamation projects).