25 Pa. Code § 86.37 - Criteria for permit approval or denial
(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.
(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).
Notes
The provisions of this § 86.37 amended under section 4.2 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); 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).
This section cited in 25 Pa. Code §
86.43 (relating to improvidently
issued permits); 25 Pa. Code §
86.129 (relating to coal
exploration on areas designated as unsuitable for surface mining operations);
25 Pa. Code §
86.162b (relating to Land
Reclamation Financial Guarantees); 25 Pa. Code §
86.189 (relating to reclamation of
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