Section 86.64. Right of entry

(a) An application shall contain a description of the documents upon which the applicant bases his legal right to enter and commence coal mining activities within the permit area and whether that right is the subject of pending court litigation. The description shall identify the documents by type and date of execution, identify the specific lands to which the document pertains and explain the legal rights claimed by the applicant.

(b) Where the private mineral estate to be mined has been severed from the private surface estate, an applicant shall also submit one of the following:

(1) A copy of the written consent of the surface owner for the extraction of coal by surface mining methods.

(2) A copy of the conveyance that expressly grants or reserves the right to extract coal by surface mining methods.

(3) If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under the law of the Commonwealth, the applicant has the legal authority to extract the coal by those methods.

(c) This section will not be construed to provide the Department with the authority to adjudicate property rights disputes.

(d) Except for permit applications based upon leases in existence on January 1, 1964, for bituminous coal surface mines, or leases in existence on January 1, 1972, for anthracite coal surface mining operations or permit applications for coal refuse disposal areas, coal preparation facilities which are not situated on a surface mining permit area and the surface activities of underground mines, the application for a permit shall include, upon a form prepared and furnished by the Department, the written consent of the landowner to enter upon land to be affected by the activities by the operator and by the Commonwealth and of its authorized agents prior to the initiation of surface mining activities, during surface mining activities, and for 5 years after the activities are completed or abandoned for the purpose of reclamation, planting and inspection or for the construction of pollution abatement facilities as deemed necessary by the Department for the purpose of the acts. The forms shall be deemed to be recordable documents and, prior to the initiation of coal mining activities under the permit, the forms shall be recorded by the applicant at the office of the recorder of deeds in the county in which the area to be affected under the permit is situated.

(1) In the case of a lease in existence on January 1, 1964, for bituminous coal surface mines, or leases in existence on January 1, 1972, for anthracite coal surface mining operations, the application for permit shall include, upon a form prescribed and furnished by the Department, a notice of the existence of the lease and a description of the chain of title.

(i) The forms shall be deemed to be recordable documents, and, prior to the initiation of coal mining activities under the permit, the forms shall be recorded by the applicant at the office of the recorder of deeds in the county in which the area to be affected under the permit is situated.

(ii) The forms shall require the information and execution necessary to provide entry upon land to be affected by the operation without constraints pertaining to the assignability, transferability or duration of the consent, except as provided for in the acts. This form may not alter or constrain the contractual agreements and rights of the parties thereto.

(2) In the case of permits for coal refuse disposal areas, coal preparation facilities which are not situated on a surface mining permit area, and underground mines, the applicant shall describe the documents upon which the applicant bases the right to enter upon the land and conduct coal mining activities. The Department will have access to the permitted surface facilities and lands during the mining activities and for 5 years after completion or abandonment of the mining and reclamation activities for the purpose of reclamation, planting and inspection or for the construction of pollution-abatement facilities deemed necessary by the Department. The Department may issue orders to require access. If a landowner fails or refuses to comply with an order to require access, the landowner shall be liable for reasonable legal expenses incurred by the Department in enforcing the order. For purposes of issuing orders and imposing liability for reasonable legal expenses under this subsection, a landowner includes a person holding title to, or having a proprietary interest in, surface or subsurface rights.

(3) The requirements of this subsection are in addition to the information required by subsections (a) and (b).

(e) For the purpose of this section the term ‘‘lease’’ means an agreement in which the surface landowner is the lessor and the applicant is the lessee or the assignee of the lessee. A deed of severance is not a lease.

(f) The information required in this section shall be made part of the permit application prior to approval of the bond under Subchapter F (relating to bonding and insurance requirements).

The provisions of this § 86.64 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 June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (219163) to (219164) and (228225).

Notation

Notes of Decisions

Application Denied

The phrase ‘‘the right to mine and remove said coal’’ in a deed does not ‘‘expressly’’ grant a right to strip mine—any such grant must be inferred. Because the company failed to submit any document meeting this minimum requirement for the grant of a surface mining permit, the Environmental Hearing Board correctly concluded that the Department of Environmental Resources had no choice but to deny the application. Empire Coal Mining and Development, Inc., v. Department of Environmental Resources, 678 A.2d 1218 (Pa. Cmwlth. 1996).

Because the owner of subsurface mineral rights was not required to obtain the surface owner’s consent of entry as part of an application to conduct surface mining operations, the trial court’s failure to order such consent was not an error. A reservation in the deed excepting stripping and coal rights provides implied consent. Sedat, Inc. v. Fisher, 617 A.2d 1, 4 (Pa. Super. 1992); affirmed 701 A.2d 223 (Pa. 1997).

Discovery

Because the Department of Environmental Resources (DER) refused to process petitioner’s application for a mining permit, petitioners subsequently commenced an action to compel the DER to process their application, based on a prior Superior Court decision, and requested the production of two Department memoranda for discovery. The Commonwealth Court determined one memorandum was protected from discovery under the work product doctrine and the other memorandum was immune from discovery on the basis of the attorney-client privilege. Sedat, Inc., v. Department of Environmental Resources, 641 A.2d 1243 (Pa. Cmwlth. 1994).

Cross References

This section cited in 25 Pa. Code § 86.37 (relating to criteria for permit approval or denial); 25 Pa. Code § 86.61 (relating to responsibilities); 25 Pa. Code § 86.264 (relating to applications for assistance); and 25 Pa. Code § 86.84 (relating to applications for assistance).