Pennsylvania Code › Title 25 - ENVIRONMENTAL PROTECTION › Part I - Department of Environmental Protection › Subpart C - Protection of Natural Resources › Article I - Land Resources › Chapter 86 - SURFACE AND UNDERGROUND COAL MINING: GENERAL › Subchapter B - PERMITS › REVIEW, PUBLIC PARTICIPATION AND APPROVAL, DISAPPROVAL OF PERMIT APPLICATIONS AND PERMIT TERMS AND CONDITIONS › Section 86.37 - Criteria for permit approval or denial

Current through Register Vol. 54, No. 28, July 13, 2024
(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. For the purpose of this section,
						  the term "violation" includes the types of violations listed in the definition
						  of "violation" in 30 CFR
						  701.5 (relating to definitions). 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.