ENVIRONMENTAL QUALITY BOARD [25 PA. CODE CH. 86] Criteria and Procedures for Designating Areas Unsuitable for Surface Mining Activities [26 Pa.B. 5962] The Environmental Quality Board (Board) by this order amends Chapter 86 (relating to areas unsuitable for mining). The amendments clarify ambiguous language contained in Subchapter D (relating to areas unsuitable for mining) concerning the designation of areas as unsuitable for mining and correct several typographical errors.
This order was adopted by the Board at its meeting of August 20, 1996.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Roderick A. Fletcher, P.E., Director, Bureau of Mining and Reclamation, Room 209, Executive House, P.O. Box 8461, Harrisburg, PA 17105-8461 (717) 787-5103 or Joseph Pizarchik, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P.O. Box 8464, Harrisburg, PA 17105-8464 (717) 787-7060. Persons with a disability may use the AT&T relay service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). These amendments are available electronically through the Department of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
These amendments are adopted under the authority of the following provisions of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. §§ 1396.1--1396.19a): section 4.2(a) (52 P. S. § 1396.4b(a)), which provides general rulemaking authority; section 4.5 (52 P. S. § 1396.4e), which provides for the designation of an area as unsuitable for all or certain types of surface mining operations; and under the following provisions of the Coal Refuse Disposal Control Act (52 P. S. §§ 30.51--30.66): section 3.2(a) (52 P. S. § 30.53b(a)), which authorizes the adoption of rules and regulations; section 6.1 (52 P. S. § 30.56a), which provides for the designation of an area as unsuitable for all or certain types of coal refuse disposal operations; and under the following provisions of The Clean Streams Law (35 P. S. §§ 691.1--691.1001): section 5 (35 P. S. § 691.5), which authorizes the adoption of rules and regulations; section 315 (h)--(o) (35 P. S. § 691.315 (h)--(o)), which provides for the designation of an area as unsuitable for all or certain types of surface mining operations; and under Section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which authorizes the adoption of regulations necessary for the Department to perform its work.
D. Background
The statutes and regulations which contain the requirements and implementation procedures for the areas unsuitable for mining program are based on the premise that certain land areas should be designated unsuitable for mining to protect values which would be irretrievably lost or damaged by coal mining.
The criteria for designation of areas unsuitable for mining are separated into two distinct categories identified as mandatory and discretionary criteria.
The mandatory criterion (§ 86.122(a) (relating to criteria for designating lands as unsuitable)) requires designation in the event it can be demonstrated that reclamation of an area is not technologically and economically feasible. This criterion is narrow in scope and up to now has been used exclusively where coal mining would, in all probability, result in the production of acid mine drainage which would cause significant environmental damage.
The discretionary criteria (§ 86.122(b) (1)--(4)) are broad in scope and provide for protection of areas where reclamation could feasibly be accomplished under current laws, but where coal mining would be incompatible with existing land use or cause significant damage to or long term losses of important environmental features. There are four discretionary criteria which identify areas which may be designated unsuitable for mining where coal mining will: 1) be incompatible with land use plans; 2) affect fragile or historic lands; 3) affect renewable resource lands with loss or reduction of water supply or of food or fiber products; or 4) affect natural hazard lands where coal mining could endanger life or property.
Rulemaking was proposed to add language to § 86.122 (b)(1)--(4) to identify the specific criteria and circumstances that the Department would consider in exercising its discretion to recommend that an area be designated as unsuitable for mining.
In the processing of previous areas unsuitable for mining petitions, the Board received comments indicating that § 86.130 (b) (relating to areas designated as unsuitable for mining) referred to ''surface mining operations'' for which no regulatory definition exists. Elsewhere in Subchapter D, the activities subject to Subchapter D are referred to as ''surface mining activities,'' ''surface mining,'' ''surface coal mining,'' ''surface coal mining operations,'' ''surface mining operation,'' ''mining,'' ''mining operations'' or ''mining activities.'' With the exception of ''surface mining activities,'' these terms are not defined in the statutes or regulations. The Board therefore proposed that these terms be replaced with the term ''surface mining activities'' which was defined in § 86.101.
E. Summary of Comments and Responses on the Proposed Rulemaking
Numerous comments were received in opposition to the proposed amendments to the discretionary criteria in § 86.122(b). Several commentators believed that the changes would narrow and limit the protection of historic resources available under the existing language while other commentators believed the proposed changes broaden and expand the criteria and conditions under which the Department would consider designation of an area as unsuitable for mining. After an informal review of the proposed rulemaking, the Federal Office of Surface Mining Reclamation and Enforcement (OSMRE) indicated that the proposed rulemaking would be less effective than the corresponding Federal regulations.
In consideration of these comments, all proposed changes to the discretionary criteria in § 86.122(b)(1)--(4) have been deleted. The only changes being made to this subsection are replacement of the term ''surface mining activities,'' which was used in the proposed amendments, with the term ''surface mining operations'' for these final amendments as discussed in this Preamble.
Although the Board had not proposed revisions to the definition of the term ''surface mining activities'' in § 86.101, comments were received which questioned the legal and statutory authority for the definition and use of the term ''surface mining activities'' contained in § 86.101, because SMCRA and The Clean Streams Law which authorize designation of areas unsuitable for mining use the term ''surface mining operations.'' The Board had proposed that a variety of terms used in Subchapter D be replaced with the term ''surface mining activities'' which was also used in Subchapter D and was defined in § 86.101. The comments also pointed out that the term ''surface mining activities'' is defined differently in § 86.1 (relating to definitions) and the use of the same term in Subchapter D but with a different definition was confusing.
To understand the changes to the final rulemaking which were made in response to the comments concerning the legal bases for the definition of ''surface mining activities'' in § 86.101, it is necessary to know the history of the areas unsuitable for mining provisions. The following history also explains the legal basis for the § 86.101 definition and the use of the term ''surface mining operations'' in the final rulemaking.
The designation of areas as unsuitable for mining originated with the 1977 enactment of the Federal Surface Mining Control and Reclamation Act (Federal SMCRA) (30 U.S.C.A. § 1201 et seq.). The areas unsuitable for mining provisions are in section 522 of the Federal SMCRA (30 U.S.C.A. § 1272). These provisions apply to surface coal mining operations. Section 522 of the Federal SMCRA and the Federal regulations use the same term, ''surface coal mining operations,'' which is defined in section 701 of the Federal SMCRA and section 700.5 of the Federal regulations to mean:
(a) Activities conducted on the surface of lands in connection with a surface coal mine or, subject to the requirements of section 516 of the Act, surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. Such activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountain top removal, box cut, open pit, and area mining; the use of explosives and blasting; in situ distillation or retorting; leaching or other chemical or physical processing; and the cleaning, concentrating, or other processing or preparation of coal. Such activities also include the loading of coal for interstate commerce at or near the mine site. Provided, these activities do not include the extraction of coal incidental to the extraction of other minerals, where coal does not exceed 16 2/3 percent of the tonnage of minerals removed for purposes of commercial use or sale, or coal exploration subject to section 512 of the Act; and, Provided further, that excavation for the purpose of obtaining coal includes extraction of coal from coal refuse piles; and
(b) The areas upon which the activities described in paragraph (a) of this definition occur or where such activities disturb the natural land surface. These areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entry ways, refuse banks, dumps, stock piles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or material on the surface, resulting from or incident to those activities.
30 CFR 700.5, 30 U.S.C.A. § 1291(28). Section 516 of the Federal SMCRA is titled ''Surface effects of underground coal mining operations'' and regulates every surface effect of underground coal mining.
When OSMRE adopted regulations to implement the areas unsuitable for mining program on March 13, 1979, OSMRE stated:
Section 522 of the Act establishes a procedure to designate areas unsuitable for all or certain types of coal mining, thereby enabling the State and Federal governments to respond to conflicts which often arise between coal mining and the other uses of the land . . . . The petition process, the Federal coal lands review and the Congressional designations, except where specifically exempt, all apply to the surface effects of underground mining as well as surface mining.
Under the provisions for designation citizens can petition the regulatory authority (DEP) to designate certain areas unsuitable for all or certain types of surface or underground coal mining. . . .
44 FR at 14989. It was clearly OSMRE's position that the areas unsuitable for mining petition process applies to all types of surface and underground coal mining.
In 1980, the General Assembly made numerous changes to the Commonwealth's mining statutes to secure primary control over the regulation of coal mining in this Commonwealth. To secure primacy these changes had to make the Commonwealth's laws as effective as Federal law. These changes included the addition of areas unsuitable for mining provisions to section 4.5 of SMCRA, section 315(h)--(o) of The Clean Streams Law and section 6.1 of the Coal Refuse Disposal Control Act. These statutory changes, as well as necessary regulatory changes, were drafted by the Ad Hoc Task Force on Mining Legislation, a group of industry, environmental, government, public interest and labor representatives. The stated purpose of the Ad Hoc Task Force was to ''upgrade the existing Pennsylvania surface mining program where it was necessary to meet minimum Federal requirements while retaining the more stringent state requirements'' (10 Pa. B. 4789 (December 20, 1980)).
The provisions drafted by the Ad Hoc Task Force on Mining Legislation in 1980 and added to SMCRA by the General Assembly closely parallel Federal SMCRA; however, SMCRA used the term ''surface mining operations'' which it states is defined in section 3 of SMCRA (52 P. S. § 1396.3). Section 315(h) of The Clean Streams Law, which requires designation if reclamation is not technologically and economically feasible, also uses the term ''surface mining operations'' as defined in section 3 of SMCRA. Section 3 of SMCRA does not, however, contain a definition of ''surface mining operations.'' Presumably this omission was an oversight by the Ad Hoc Task Force on Mining Legislation and the General Assembly. Sections 315(i)--(o) of The Clean Streams Law, which provides for discretionary designations and the other areas unsuitable for mining provisions, use the term ''mining operations,'' which is also undefined.
The areas unsuitable for mining regulations developed by the Ad Hoc Task Force in 1980 paralleled the statutory language, but used a variety of terms for the activities covered by this program (10 Pa. B. 4789). The term most often used was ''surface mining'' which was defined in § 86.101 to mean:
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 all 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, and all activities involved in or related to underground coal mining which are conducted on the surface of the land, produce changes in the land surface, or disturb the surface, air or water resources of the area.
Other terms used, which were not defined, included ''mining,'' ''surface mining operations,'' ''mining operations'' and ''surface coal mining operations.'' In 1982, the regulatory definition of ''surface mining'' in § 86.101 was amended to include ''coal refuse disposal,'' ''coal processing'' and ''coal preparation activities'' (12 Pa. B. 2473). These three terms were added to satisfy the Federal law requirement that State programs be at least as effective as the Federal law (30 U.S.C.A. § 1253) and because Subchapter D also implemented the areas unsuitable for mining provisions of the Coal Refuse Disposal Control Act.
In 1990, the Board amended §§ 86.102 and 86.103 and 86.121--86.124 by changing the term ''surface mining operations'' to ''surface mining activities.'' Section 86.101 was amended by changing the term ''surface mining'' to ''surface mining activities.'' The definition of the term ''surface mining'' in § 86.101 was not changed (20 Pa.B. 3383). Not all references to ''surface mining'' in Subchapter D were changed to ''surface mining activities.''
In the proposed rulemaking, the Board had proposed amending Subchapter D to switch the remaining references to ''surface mining'' to ''surface mining activities'' as defined in § 86.101. The Board also proposed changing the terms ''surface coal mining operations,'' ''surface mining operations'' and ''surface coal mining'' which appeared in Subchapter D to ''surface mining activities'' to, for the first time, provide for consistent use of terminology in Subchapter D. No changes were proposed to the § 86.101 definition of ''surface mining activities.''
In response to comments received on the proposed changes, Subchapter D is being modified to replace the term ''surface mining activities'' with ''surface mining operations.'' Surface mining operations is the term used in SMCRA authorizing the designation of areas as unsuitable for mining. The term ''surface mining operations'' is being used to be consistent with SMCRA. ''Surface mining operations'' is also defined in § 86.101 to remedy the lack of a definition in SMCRA. The definition of this term in § 86.101 of the regulations is the same definition developed by the Ad Hoc Task Force on Mining Legislation to obtain primacy, is consistent with the primacy requirements of Federal SMCRA, was approved by OSMRE in 1982 and has been in the regulations for over 15 years. Finally, while the definition of ''surface mining operations'' uses different words than are used in the Federal definition of ''surface coal mining operations'' they both cover the same activities.
Although no revisions to the existing definition in § 86.101 were proposed and it is believed that the definition is consistent with the statutory and legal requirements of the Federal program, OSMRE has been requested to provide clarification of the definition in the context of the ''surface effects'' of underground mining. Upon receipt of the requested clarification, any revisions to this existing definition which are found to be necessary will be addressed in future rulemaking.
The draft changes of the final rulemaking were presented to the Mining and Reclamation Advisory Board (MRAB) at its meeting of April 25, 1996. The MRAB approved the final-form rulemaking.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits
The amendments will clarify and eliminate ambiguities in the existing regulations which will benefit all persons who may wish to request that an area be designated as unsuitable for mining and would also benefit coal producers and coal owners who may be affected by this designation.
Compliance Costs
The amendments impose no direct or indirect costs on coal producers or the general public.
Compliance Assistance Plan
The amendments do not affect the way in which the regulations are implemented, so no compliance assistance plans are anticipated.
Paperwork Requirements
The amendments do not change any current regulatory procedures and do not impose any additional paperwork requirements. Areas which do not qualify for designation as unsuitable for mining remain subject to the permitting requirements of Commonwealth statutes and regulations.
G. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of proposed rulemaking published at 25 Pa. B. 4767 (November 4, 1995) on October 25, 1995, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment. In compliance with section 5 (b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received as well as other documentation.
In preparing these final-form regulations, the Department has considered all comments received from IRRC and the public. No comments were received from the Committees.
These final-form regulations were deemed approved by the House Environmental Resources and Energy Committee on October 7, 1996, and were deemed approved by the Senate Environmental Resources and Energy Committee on October 7, 1996. IRRC met on October 17, 1996, and approved the amendments in accordance with section 5(c) of the Regulatory Review Act.
I. Findings of the Board
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No 204) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa.Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These amendments do not enlarge the purpose of the proposal published at 25 Pa.B. 4767.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
J. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa.Code Chapter 86, are amended by amending §§ 86.101--86.103 and 86.121--86.130 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa. B. 5289 (November 2, 1996). See 26 Pa. B. 5960 (December 14, 1996) for a document concerning this subject.)
Fiscal Note: Fiscal Note 7-293 remains valid for the final adoption of the subject regulations.
Annex A TITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION CHAPTER 86. SURFACE AND UNDERGROUND COAL MINING: GENERAL Subchapter D. AREAS UNSUITABLE FOR MINING CRITERIA AND PROCEDURES FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE 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 damaged or destroyed by surface mining. 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, National Natural Landmark sites, areas where mining may cause flooding, environmental corridors containing a concentration of ecologic and esthetic features, areas of recreational value due to high environmental quality and buffer zones adjacent to the boundaries of areas where surface mining operations are prohibited under section 4.5(h) of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4e(h)).
Historic lands--Historic or cultural districts, places, structures or objects, including archaeological and paleontological sites, National Historic Landmark sites, sites listed or eligible for listing on a State or National Register of Historic Places, sites having religious or cultural significance to native Americans or religious groups or sites 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 by a public agency or used principally for public business, meetings or other group gatherings.
Public park--An area dedicated or designated by a Federal, State or local agency 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. For the purposes of this subchapter, local agency includes nonprofit organizations owning lands which are dedicated or designated for public recreational use.
Publicly owned park--A public park owned by a Federal, State or local governmental agency.
Renewable resource lands--Aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.
Significant recreational, timber, economic or other values incompatible with surface mining--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 offsite 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 and activities involved in or related to underground coal mining which are conducted on the surface of the land, produce changes in the land surface, or disturbs the surface, air or water resources of the area.
§ 86.102. Areas where mining is prohibited or limited.
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 River Act (16 U.S.C.A. § 1276(a)) 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 or eligible for inclusion 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 operations may be permitted if the Department finds 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 finds 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 finds that significant land and water conservation benefits will result when remining of previously mined lands is proposed, or when the Department finds 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 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 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 measured horizontally from an occupied dwelling, unless the only part of the surface mining operations which is within 300 feet 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 or unless the current owner thereof has provided a written waiver consenting to surface mining operations closer than 300 feet. The waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the current owner.
(10) Within 300 feet measured horizontally of a public building, school, church, community or institutional building or public park.
(11) Within 100 feet measured horizontally of a cemetery.
(12) Within 100 feet 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.
[Continued on next Web Page]
[Continued from previous Web Page] § 86.103. Procedures.
(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 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 measured horizontally of any occupied dwelling, the applicant shall submit with the application a written waiver from the current owner of the dwelling, consenting to the surface mining operations within a closer distance of the dwelling as specified in the waiver. The waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the current owner.
(e) When the proposed surface mining operations may adversely affect a public 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 historic 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.
(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.
CRITERIA AND PROCEDURES FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE MINING § 86.121. Areas designated unsuitable for surface mining operations.
(a) The requirements of this section and §§ 86.122-- 86.129 do not apply to permit areas on which surface mining operations were being conducted on August 3, 1977, or are being conducted under a permit issued under the Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.19a), or if substantial legal and financial commitments as defined by the Office of Surface Mining Reclamation and Enforcement, United States Department of the Interior under section 522 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. § 1272) if the surface mining operations were in existence prior to January 4, 1977.
(b) Permits for surface mining operations will not be issued in areas designated unsuitable under this subchapter. The permits may be issued in areas where the applicant has prior substantial legal and financial commitments in a surface mining operation if the applicant establishes the existence of the commitments to the satisfaction of the Department. In considering the permit applications in designated areas, the Department will impose terms and conditions to preserve and protect the applicable values and uses of the area.
§ 86.122. Criteria for designating lands as unsuitable.
(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.
§ 86.123. Procedures: petitions.
(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 to the Department's Bureau of Mining and Reclamation (Bureau) on forms developed by that Bureau:
(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.
(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.
§ 86.124. Procedures: initial processing, record- keeping and notification requirements.
(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. Once the requirements of § 86.123 are met, no party may bear a burden of proof, but 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 will not issue permits for surface mining operations in areas included within a petition for a designation under § 86.122 (relating to criteria for designating lands as unsuitable) if the petition is received by the Department prior to the close of the public comment period for the permit, unless the permit applicant establishes prior substantial legal and financial commitments in a surface mining operation within the proposed permit area. A petition received after the close of the public comment period on a permit application relating to the same permit area will not prevent the Department from issuing a decision on that permit application. For the purpose of this section, ''close of the public comment period'' means at the close of a public hearing held on the permit, or, if no hearing is held, at the close of the comment period following public notice of the permit application. Once a petition has been returned to the petitioner under this subchapter, the Department may proceed to issue a decision on a permit application received for surface mining operations 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 EQB 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, supporting evidence, a short statement identifying the petition to which the allegations pertain, a request for intervenor status, and 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 Bureau of Mining and Reclamation district 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 in the form of a proposed rulemaking on each complete petition received under this section and submit it to the EQB as a proposed regulation under this section.
§ 86.125. Procedures: hearing requirements.
(a) Within 10 months of the receipt of a complete petition, the EQB 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. The hearing shall be legislative and fact-finding in nature, without cross examination of witnesses. The EQB will make a verbatim transcript of the hearing.
(b) The EQB will give notice of the date, time and location of the hearing to:
(1) Local, State and Federal agencies which may have an interest in the decision on the petition.
(2) The petitioner and the intervenors.
(3) A person with an ownership or other interest made known to the Department in the area covered by the petition.
(4) Notice of the hearing shall be sent by first class mail and postmarked not less than 30 days before the scheduled date of the hearing.
(c) The EQB 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 shall begin between 4 and 5 weeks before the scheduled date of the public hearing.
(d) The EQB may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale.
(e) The EQB will receive and consider written comments on the petition 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. Within 60 days of the close of the public comment period, the EQB will make a final written decision.
(f) If that all petitioners and intervenors so stipulate, the petition may be withdrawn from consideration prior to the hearing.
§ 86.126. Procedures: decision.
(a) In reaching its decision on the proposed rule, 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) A final written decision in the form of a regulation will be issued by the EQB within 60 days following the public hearing, including a statement of reasons for the decision. The EQB will promptly send the decision by certified mail to the petitioner, intervenors, and to the Regional Director of the Office of Surface Mining Reclamation and Enforcement, and will deposit and publish its decision as a regulation in the manner required by the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1102, 1201--1208 and 1602); 45 Pa.C.S. §§ 501--907; and sections 3 and 4 of the act of July 9, 1976 (P. L. 877, No. 160) (45 Pa.Sp. Pamph. 84 page 35).
§ 86.127. Data base and inventory system requirements.
(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, the Department of Community and Economic Development, 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.
§ 86.128. Public information.
The Department will:
(1) Make the information and database system developed under § 86.127 (relating to data base 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.
§ 86.129. Coal exploration.
The submission of a petition to designate an area unsuitable for all or certain types of surface mining operations or 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. Coal exploration may not be conducted on an area designated as unsuitable for surface mining operations or where a petition to designate an area unsuitable for surface mining operations has been received by the Department in accordance with this chapter unless the exploration is consistent with the designation or the purposes of the submitted petition and will be conducted to preserve and protect the applicable values and uses of the area. Exploration may not be conducted unless the Department has been notified in advance and has issued written approval for the exploration under § 86.133(f) (relating to general requirements). Approval will not be issued unless the person seeking the approval has described the nature and extent of the proposed operation, and has described in detail the measures to be employed to prevent adverse effects.
§ 86.130. Areas designated as unsuitable for mining.
(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 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 horizontal distance west of the Lower Freeport outcrop; then continuing in a southerly direction, remaining 100 feet from and paralleling the Lower Freeport outcrop as the outcrop proceeds easterly to intersect the 2,040 foot elevation contour; then along a straight line extending in a northeasterly direction intersecting the 2,282-foot 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 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 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 upstream from the Stony Point Road (Township Road 600) bridge over Cold Stream.
(3) The tract of approximately 119 acres 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 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 easterly of the old Louden deep mine railroad grade, for a distance of approximately 5,500 feet 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 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 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 in Rush Township, 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 in Elder Township, Cambria County, described as follows:
Beginning at the northern edge of a raw water storage tank located approximately 2,000 feet south of Township Route 551 and 2,150 feet 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 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 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 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 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 south of Legislative Route 11056; then 575 feet due west along this property, fence or tree line to a point located approximately 350 feet 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 south of the junction of Township Route 551 and State Route 36; then south along State Route 36 for approximately 900 feet to a tree, fence or property line; then along the line, intersecting the Laurel Hill anticline axis at a point approximately 1,575 feet 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 north of the junction of Legislative Routes 221 and 11077 and intersecting Legislative Route 11076 approximately 600 feet north of its junction with Legislative Routes 221 and 11067 for 6,800 feet 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 horizontal distance southwest of the Pardee No. 29 Mine complex; then proceeding in a northerly direction remaining 200 feet from and paralleling the edge of the Pardee No. 29 Mine complex for approximately 4,250 feet to a point that is approximately 200 feet horizontal distance west of the Upper Kittanning coal outcrop (intersecting an unnamed tributary to a farm pond located approximately 3,300 feet due south of Township Route 551 and 3,300 feet due west of State Route 36); then continuing north, remaining 200 feet from and parallel to the coal outcrop to a property, fence or tree line located approximately 1,820 feet 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 of surface mineable coal reserves in the southern surface water drainage basin of North Fork Tangascootack Creek watershed. The 527 acres 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, totalling approximately 525 acres, 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 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 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 north-northeast of the intersection of State Route 1016 and Township Route 502; then continuing to a point approximately 2,250 feet 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 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(a).
(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, 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(a).
(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.
* * * * * [Pa.B. Doc. No. 96-2091. Filed for public inspection December 13, 1996, 9:00 a.m.]
