Section 86.5. Extraction of coal incidental to noncoal surface mining

(a) A person who intends to extract coal incidental to the extraction of other minerals shall do so under the provisions of a noncoal surface mining permit issued under Chapter 77 (relating to noncoal mining) and subject to the conditions described in this section. Incidental coal extraction which has been approved by the Department subject to the conditions in this section shall be exempt from the other requirements of this chapter and the requirements of Chapter 87 and Chapter 88, Subchapters A—C.

(b) Subject to Department approval, for purposes of determining the beginning of the cumulative measurement period, the operator shall select and consistently use one of the following:

(1) For mining areas where coal or other minerals were extracted prior to August 3, 1977, the date extraction of coal or other minerals commenced at that mining area or August 3, 1977, whichever is earlier.

(2) For mining areas where extraction of coal or other minerals commenced on or after August 3, 1977, the date extraction of coal or other minerals commenced at that mining area.

(c) A person who plans to commence extraction of coal incidental to noncoal surface mining shall file with the Department a complete request for exemption from the requirements identified in subsection (a). The request shall be submitted as part of an application for a permit, or for a permit revision, to conduct noncoal surface mining activities.

(d) A person who has commenced incidental extraction of coal under a noncoal mining activity permit prior to December 16, 1995, may continue the extraction until February 14, 1996, after which no further incidental coal extraction may occur unless that person files an administratively complete request for exemption as described in subsection (g). Incidental coal extraction may then continue until the Department has made its final decision and written determination on the request for exemption.

(e) Sections 77.121 and 77.122 (relating to public notices of filing of permit applications; and opportunity for submission of written comments or objections on the permit application) shall be followed by the applicant and by the Department.

(f) Information relative to incidental coal extraction will be made available to the public as follows:

(1) Except as provided in paragraph (2), the information submitted to the Department under this section shall immediately be made available for public inspection and copying at the local offices of the Department having jurisdiction over the mining operations claiming exemption until at least 3 years after expiration of the period during which the subject mining area is active.

(2) The Department may keep information submitted to the Department under this section confidential if the person submitting it requests in writing, at the time of submission, that it be kept confidential and the information concerns trade secrets or is privileged commercial or financial information of the persons intending to conduct operations under this section.

(3) Information requested to be held as confidential under paragraph (2) will not be made publicly available until after notice and opportunity to be heard is afforded persons both seeking and opposing disclosure of the information.

(g) A request for exemption shall include at a minimum:

(1) The name and address of the applicant.

(2) A list of the minerals sought to be extracted.

(3) Estimates of annual production of coal and the other minerals within each mining area over the anticipated life of the mining operation.

(4) Estimated annual revenues to be derived from bona fide sales of coal and other minerals to be extracted within the mining area.

(5) The estimated annual fair market values at the time of projected use of the coal and other minerals to be extracted from the mining area, where coal or the other minerals are to be used rather than sold.

(6) The basis for annual production, revenue and fair market value estimates.

(7) A description, including county, municipality and boundaries of the land, of sufficient certainty that the mining areas may be located and distinguished from other mining areas.

(8) An estimate to the nearest acre of the number of acres that will compose the mining area over the anticipated life of the mining operation.

(9) Evidence of publication, in a newspaper of general circulation in the county of the mining area, of a public notice that a request for exemption has been filed with the Department. The public notice shall identify the persons claiming the exemption and contain a description of the proposed operation and its locality that is sufficient for interested persons to identify the operation.

(10) Representative stratigraphic cross-sections based on test borings or other information identifying and showing the relative position, approximate thickness and density of the coal and each other mineral to be extracted for commercial use or sale and the relative position and thickness of material, not classified as other minerals, that will also be extracted during the conduct of mining activities.

(11) A map to a scale of not less then 1:25,000 which clearly identifies the mining area.

(12) A general description of mining and mineral processing activities for the mining area.

(13) A summary of sales commitments and agreements for future delivery, if any, which the applicant has received for other minerals to be extracted from the mining area, or a description of potential markets for the minerals.

(14) A description specifying the use, if the other minerals are to be commercially used by the applicant.

(15) For permitted noncoal surface mining activities which have been in operation prior to requesting an exemption, the following additional information:

(i) Relevant documents the operator has received from the Department documenting its exemption from the act.

(ii) The cumulative production of the coal and other minerals from the mining area.

(iii) Estimated tonnages of stockpiled coal and other minerals.

(16) Other information pertinent to the qualification of the operation as exempt.

(h) The Department will notify the applicant if the request for exemption is incomplete and may at any time require submittal of additional information. The Department will approve a request for exemption only if the following are satisfied:

(1) The cumulative production of coal extracted from the mining area determined annually, as described in subsection (j)(4), does not exceed 16 2/3% of the total cumulative production of coal and other minerals removed during the period for purposes of bona fide sale or reasonable commercial use.

(2) Coal is produced from a geological stratum lying above the deepest stratum from which other minerals are extracted for purposes of bona fide sale or reasonable commercial use.

(3) The cumulative revenue derived from the coal extracted from the mining area determined annually does not exceed 50% of the total cumulative revenue derived from the coal and other minerals removed for purposes of bona fide sale or reasonable commercial use. If the coal extracted or the minerals removed are used by the operator or transferred to a related entity for use instead of being sold in a bona fide sale, the fair market value of the coal or other minerals shall be calculated at the time of use or transfer and shall be considered rather than revenue.

(4) Each other mineral upon which an exemption under this section is based shall be a commercially valuable mineral for which a market exists or which is mined in bona fide anticipation that a market will exist for the mineral in the reasonably foreseeable future, not to exceed 12 months from the end of the current period for which cumulative production is calculated, as evidenced by a legally binding agreement or other commitment for the future sale of other minerals, or other evidence that will establish to the Department's satisfaction that a bona fide market exists for the other minerals.

(5) If either coal or other minerals are transferred or sold by the operator to a related entity for its use or sale, the transaction shall be made for legitimate business purposes.

(i) Exemption determination will be as follows:

(1) Within 90 days after filing of an administratively complete application, the Department will make a written determination whether, and under what conditions, an exemption can be granted under this section, and will notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.

(2) The determination of exemption shall be based upon information contained in the application and other information available to the Department at that time.

(3) A person who is adversely affected by the determination may file an appeal as provided for under Chapter 1021 (relating to Environmental Hearing Board).

(j) A person whose request for exemption has been approved by the Department shall:

(1) Maintain onsite or at other locations available to authorized representatives of both the Department and the United States Department of the Interior information necessary to verify the exemption including, but not limited to, commercial use and sales information, extraction tonnages, and a copy of the exemption application and exemption approved by the Department.

(2) Notify the Department upon the completion of the mining operation or permanent cessation of coal extraction activities.

(3) Conduct operations in accordance with the approved request for exemption.

(4) File a written annual report beginning no later than 30 days after the end of the calendar quarter during which coal extraction commenced and each succeeding year no later than the anniversary of the initial report, for each mining area covered by an exemption. The report shall cover the preceding 12-month cumulative measurement period and shall contain the following information:

(i) Annual production of coal and other minerals and annual revenue derived from coal and other minerals during the preceding 12-month period.

(ii) The cumulative production of coal and other minerals and the cumulative revenue derived from coal and other minerals.

(iii) The number of tons of extracted coal sold in bona fide sales and total revenue derived from the sales.

(iv) The number of tons of coal extracted and used or transferred by the operator or related entity and the estimated total fair market value of the coal.

(v) The number of tons of coal stockpiled.

(vi) The number of tons of other commercially valuable minerals extracted and sold in bona fide sales and total revenue derived from the sales.

(vii) The number of tons of other commercially valuable minerals extracted and used or transferred by the operator or related entity and the estimated total fair market value of the minerals.

(viii) The number of tons of other commercially valuable minerals removed and stockpiled by the operator.

(k) Stockpiling of coal and other minerals for calculating and reporting of cumulative production will be considered as follows:

(1) Coal extracted and stockpiled may be excluded from the calculation of cumulative production until the time of its sale, transfer to a related entity or use under one of the following:

(i) Up to an amount equaling a 12-month supply of the coal required for future sale, transfer or use as calculated based upon the average annual sales, transfer and use from the mining area over the 2 preceding years.

(ii) Up to an amount that would represent a 12-month supply of the coal required for future sales, transfer or use as calculated based on the average amount of coal sold, transferred or used each month for a mining area where coal has been extracted for a period of less than 2 years.

(2) The Department will disallow all or part of an operator’s tonnages of stockpiled other minerals for purposes of meeting the requirements of this section if the operator fails to maintain adequate and verifiable records of the mining area of origin, the disposition of stockpiles or if the disposition of the stockpiles indicates the lack of commercial use or market for the minerals.

(3) The Department may allow an operator to utilize tonnages of stockpiled other minerals for purposes of meeting the requirements of this section only if the following apply:

(i) The stockpiling is necessary to meet market conditions or is consistent with generally accepted industry practices.

(ii) Except as provided in paragraph (4), the stockpiled other minerals do not exceed a 12-month supply of the mineral required for future sales as approved by the Department on the basis of the exemption application.

(4) The Department may allow an operator to utilize tonnages of stockpiled other minerals beyond the 12-month limit established in paragraph (3) if the operator can demonstrate to the Department’s satisfaction that the additional tonnage is required to meet future business obligations of the operator, such as may be demonstrated by a legally binding agreement or other commitment or legitimate evidence of the need for future delivery of the minerals.

(5) The Department may periodically revise the other mineral stockpile tonnage limits in accordance with the criteria established by paragraphs (3) and (4) based on additional information available to the Department.

(l) The Department will conduct an annual compliance review of the mining area, utilizing the annual report submitted under subsection (j)(4), an onsite inspection and other information available to the Department.

(m) If the Department has reason to believe that a specific mining area was not exempt under this section at the end of the previous reporting period, is not exempt or will be unable to satisfy the exemption criteria at the end of the current reporting period, the Department will notify the operator that the exemption may be revoked and the reasons therefore. The exemption will be revoked unless the operator demonstrates to the Department within 30 days that the mining area in question should continue to be exempt. The operator and interested parties will be immediately notified of the revocation or of the decision not to revoke the exemption.

(n) Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained and shall comply with the reclamation standards of the Department with regard to conditions, areas and activities existing at the time of revocation or denial.

(o) An operator who does not conduct activities in accordance with the terms of an approved exemption and knows or should know the activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of the Department’s regulations which occur during the period of the activities.

The provisions of this § 86.5 adopted February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084. Immediately preceding text appears at serial pages (354284), (336551) to (336552), (206635) to (206638) and (310149).

Notation

Authority

The provisions of this § 86.5 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.19a); sections 4 and 11(a) of the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. § § 3304 and 3311(a)); 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).

Cross References

This section cited in 25 Pa. Code § 86.1 (relating to definitions).