Authority
The provisions of this Chapter 86 issued and amended under The Clean Streams Law (35 P. S. § § 691.1—691.1001); the Surface Mining Conservation and Reclamation Act (52 P. S. § § 1396.1—1396.31); The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.1—1406.21); the Coal Refuse Disposal Control Act (52 P. S. § § 30.51—30.66); and Article XIX-A of The Administrative Code of 1929 (71 P. S. § § 510-1—510-108), unless otherwise noted.
Notes of Decisions
Construction
Department of Environmental Resources employment of the ‘‘all permits’’ test in 25 Pa. Code § 86.1 to define ‘‘valid existing rights’’ as that term is employed in section 4.5(h) of the Pennsylvania Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4(e)(h)), was consistent with the Federal regulation, 30 CFR 761.5 employing the same test, but it would not be consistent with amended Federal regulation (which had been temporarily nullified due to failure to conform to Federal Administrative Procedures Act) which defines ‘‘valid existing rights’’ in terms of unconstitutional taking of property. Willowbrook Mining Co. v. Department of Environmental Resources, 499 A.2d 2 (Pa. Cmwlth. 1985).
Federal Requirements
The Federal standards under the Surface Mining Control and Reclamation Act (30 U.S.C.A. § 1201), serve as a floor. The Federal sanction is to act only as the base rather than the ceiling for the state programs. Indeed, there would be no reason to allow the states to impose their own regulations if the regulations had to be the same as the Federal act and regulations. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231 (3d Cir. 1995).
State regulations requiring permit for all mining activity are not preempted by Federal surface writing statute, since statute contains provision allowing for the law or regulations to provide for more stringent land use and environmental controls than those required by Federal law. 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).
General Comment
Because the Department’s standard conditions met the ‘‘binding norm test,’’ the conditions were regulations and not statements of policy which may only be applied after they have been promulgated after notice and comment. The Department was, therefore, without authority to impose such conditions on the issuance and reissuance of mining permits. Department of Environmental Resources v. Rushton, 591 A.2d 1168 (Pa. Cmwlth. 1991); appeal denied 600 A.2d 541 (Pa. 1991).
Cross References
This chapter cited in 25 Pa. Code § 23.1 (relating to petitions); 25 Pa. Code § 87.2 (relating to scope); 25 Pa. Code § 87.201 (relating to scope); 25 Pa. Code § 87.204 (relating to application for authorization); 25 Pa. Code § 87.205 (relating to approval or denial); 25 Pa. Code § 87.206 (relating to operational requirements); 25 Pa. Code § 87.207 (relating to treatment of discharges); 25 Pa. Code § 87.209 (relating to criteria and schedule for release of bonds on pollution abatement areas); 25 Pa. Code § 88.2 (relating to scope); 25 Pa. Code § 88.481 (relating to scope); 25 Pa. Code § 88.494 (relating to performance standards—in situ processing of anthracite coal); 25 Pa. Code § 88.501 (relating to scope); 25 Pa. Code § 88.504 (relating to application for authorization); 25 Pa. Code § 88.505 (relating to approval or denial); 25 Pa. Code § 88.506 (relating to operational requirements); 25 Pa. Code § 88.507 (relating to treatment of discharges); 25 Pa. Code § 88.509 (relating to criteria and schedule for release of bonds on pollution abatement areas); 25 Pa. Code § 89.2 (relating to scope); 25 Pa. Code § 89.5 (relating to definitions); 25 Pa. Code § 89.7 (relating to applicability); 25 Pa. Code § 89.161 (relating to general requirements); 25 Pa. Code § 89.171 (relating to general requirements); 25 Pa. Code § 90.2 (relating to scope); 25 Pa. Code § 90.3 (relating to general requirements: permit); 25 Pa. Code § 90.5 (relating to site selection and permitting); 25 Pa. Code § 90.301 (relating to scope); 25 Pa. Code § 90.304 (relating to application for authorization); 25 Pa. Code § 90.305 (relating to application approval or denial); 25 Pa. Code § 90.306 (relating to operational requirements); 25 Pa. Code § 90.307 (relating to treatment of discharges); 25 Pa. Code § 90.309 (relating to criteria and schedule for release of bonds on pollution abatement areas); 25 Pa. Code § 90.401 (relating to general); 25 Pa. Code § 92a.2 (relating to definitions); 25 Pa. Code § 102.8 (relating to PCSM requirements); 25 Pa. Code § 102.14 (relating to riparian buffer requirements); 25 Pa. Code § 290.101 (relating to general requirements for beneficial use); and 25 Pa. Code § 290.104 (relating to beneficial use at coal mining activity sites).
