Section 86.1. Definitions

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

ABS Legacy Sites—Mine sites, permitted under the Primacy Alternate Bonding System, that have a postmining pollutional discharge where the operator has defaulted on its obligation to adequately treat the discharge and, either the bond posted for the site is insufficient to cover the cost of treating the discharge, or a trust to cover the costs of treating the discharge was not fully funded and is insufficient to cover the cost of treating the discharge.

Acts—Include the following:

(i) The Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19b).

(ii) The Air Pollution Control Act (35 P. S. § § 4001—4015).

(iii) The Clean Streams Law (35 P. S. § § 691.1—691.1001).

(iv) The Coal Refuse Disposal Control Act (52 P. S. § § 30.51—30.66).

(v) Article XIX-A of The Administrative Code of 1929 (71 P. S. § § 510-1—510-108).

(vi) The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.1—1406.21).

(vii) The Dam Safety and Encroachments Act (32 P. S. § § 693.1—693.27).

(viii) The Solid Waste Management Act (35 P. S. § § 6018.101—6018.1003).

(ix) The Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. § § 3301—3326).

Applicant—A person who seeks to obtain a permit from the Department to conduct coal mining activities under this chapter.

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

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

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

Coal preparation activity—An operation in which coal is subject to chemical or physical processing or cleaning, concentrating or other processing or preparation. The term includes a facility associated with the coal preparation activity and the activity by which the land surface has been or is disturbed as a result of or incidental to coal preparation activity of the operator, including, but not limited to, the following:

(i) Private ways and roads appurtenant to the area, land excavations and loading facilities.

(ii) Storage and stockpile facilities.

(iii) Sheds, shops and other buildings.

(iv) Water treatment and water storage facilities.

(v) Settling basins and impoundments.

(vi) Areas in which are situated facilities, equipment, machines, tools or other materials or property which result from or are used in the coal preparation activity.

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

Complete application—An application for a permit which contains an application form properly completed, signed and witnessed, a filing fee, proof of publication, the standard reports or forms required by the Department to process a permit and which demonstrates compliance with applicable statutes and regulations.

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

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

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

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

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

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

Groundwater—Subsurface waters of the Commonwealth.

Historically used for cropland—Includes the following:

(i) Lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease or option, of the land for the purpose of conducting or allowing through resale, lease or option the conduct of coal mining activities.

(ii) Lands that the Department determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved.

(iii) Lands that would likely have been used as cropland for any 5 out of the last 10 years immediately preceding the acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.

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

Interim permit—A permit issued by the Department prior to the effective date of this chapter and in accordance with the requirements of Chapter 13 (relating to compliance with the Surface Mining Control and Reclamation Act of 1977).

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

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

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

Major permit revision—A revision to a coal mining permit that requires public notice.

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

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

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

Operational area—The maximum portion of the permitted area that the permittee is authorized to disturb at any specific time during the permit term in accordance with the approved mining and reclamation plan, including all of the land affected by mining activities that is not planted, growing and stabilized.

Operation and maintenance costs—Expenses associated with the day-to-day operation and maintenance of a conventional or a passive treatment facility, such as chemicals, electricity, labor, water sampling, sludge removal and disposal, maintenance of access roads, mowing, snow removal, inspecting facilities, repairing and maintaining all aspects of the treatment facility, equipment and buildings.

Operator—A person or municipality engaged in coal mining activities as a principal as distinguished from an agent or independent contractor. When more than one person is engaged in coal mining activities in a single operation, they shall be deemed jointly and severally responsible for compliance with the provisions of the Surface Mining Conservation and Reclamation Act, The Clean Streams Law, the Coal Refuse Disposal Control Act and The Bituminous Mine Subsidence and Land Conservation Act.

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

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

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

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

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

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

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

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

(D) Being a general partner in a partnership.

(E) Based on the instruments of ownership or the voting securities of a corporate entity, owning of record a percentage of the entity as established in the definition of ‘‘own, owner, or ownership’’ in 30 CFR 701.5 (relating to definitions).

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

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

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

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

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

Permit application fee—A nonrefundable filing fee due at the time of submission of an application. The permit application fee is required for an application to be considered complete.

Permit area—Includes the following:

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

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

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

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

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

Primacy Alternate Bonding System—The bonding system utilized by the Commonwealth from July 31, 1982, until August 4, 2001, for surface coal mines, coal refuse reprocessing facilities and coal preparation plants in which a central pool of money to be used by the Department for reclamation of forfeited sites was funded in part through imposition of a per-acre reclamation fee paid by operators of permitted sites.

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

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

Property—Real or personal property.

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

Recapitalization costs—The costs associated with replacing discharge treatment facility components or the costs to install treatment systems with lower operation and maintenance costs than the system being replaced.

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

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

Underground mining activities—Includes the following:

(i) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities, including hoist and ventilating ducts, area used for the disposal and storage of waste and areas on which materials incident to underground mining operations are placed.

(ii) Underground operations such as underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.

(iii) Operation of a mine, including preparatory work in connection with the opening and reopening of a mine, backfilling, sealing and other closing procedures, postclosure mine pool maintenance and any other work done on land or water in connection with a mine.

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

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

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

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

The provisions of this § 86.1 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended November 18, 1988, 18 Pa.B. 5155, effective August 25, 1989, 19 Pa.B. 3674; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended April 9, 1993, effective April 10, 1993, 23 Pa.B. 1711; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended November 14, 1997, effective November 15, 1997, 27 Pa.B. 6041; amended November 28, 1997, effective November 29, 1997, 27 Pa.B. 6186; amended October 8, 1999, effective October 9, 1999, 29 Pa.B. 5289; corrected January 12, 2001, effective October 9, 1999, 31 Pa.B. 145; corrected July 25, 2003, effective November 15, 1997, 33 Pa.B. 3608; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775; amended August 29, 2008, effective August 30, 2008; 38 Pa.B. 4742; amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084; amended November 9, 2012, effective November 10, 2012, 42 Pa.B. 7013; amended August 21, 2015, effective August 22, 2015, 45 Pa.B. 4904. Immediately preceding text appears at serial pages (367502), (357447) to (357448), (364367) to (364370) and (367503).

Notation

Authority

The provisions of this § 86.1 amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); sections 4(a), (d) and (d.2) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.4(a), (d) and (d.2) and 1396.4b); PA. CONST. ART. 1, § 27; and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).

Notes of Decisions

This chapter is not preempted by the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. § § 1201—1328) since the act allows for State regulations providing for more stringent land use and environmental control. Budinsky v. Department of Environmental Resources, 819 F.2d 418 (3rd Cir. 1987); cert. denied 484 U. S. 926; reh’g denied 484 U. S. 1083 (U. S. 1988).

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

Cross References

This section cited in 25 Pa. Code § 86.36 (relating to review of permit applications); 25 Pa. Code § 86.37 (relating to criteria for permit approval or denial); 25 Pa. Code § 86.43 (relating to improvidently issued permits); 25 Pa. Code § 86.62 (relating to identification of interests); 25 Pa. Code § 86.63 (relating to compliance information); 25 Pa. Code § 86.102 (relating to areas where mining is prohibited or limited); 25 Pa. Code § 86.353 (relating to identification of ownership); 25 Pa. Code § 90.305 (relating to approval or denial); 25 Pa. Code § 95.10 (relating to treatment requirements for new and expanding mass loadings of Total Dissolved Solids (TDS)); and 25 Pa. Code § 290.104 (relating to beneficial use at coal mining activity sites).