MINING AND RECLAMATION ADVISORY BOARD
JULY 9, 1998

EQB REGULATORY AMENDMENT #7-331
REGULATORY BASICS INITIATIVE

25 PA. CODE CHAPTER 86
SURFACE AND UNDERGROUND COAL MINING: GENERAL
SUBCHAPTER A: GENERAL PROVISIONS
SUBCHAPTER D: AREAS UNSUITABALE FOR MINING

SUMMARY
DRAFT FINAL-FORM RULEMAKING AMENDMENTS

SUMMARY
AREAS UNSUITABLE FOR MINING
REGULATORY BASICS INITIATIVE

The Department has developed draft final amendments to its regulations in 25 Pa. Code, Chapter 86, Subchapter A, pertaining to general definitions, and to Subchapter D, which contains the criteria and procedures under which the Environmental Quality Board (EQB) is authorized to designate areas as unsuitable for mining.

This proposal was developed as a result of the Department’s Regulatory Basics Initiative to identify regulations that were more stringent than federal requirements, lack clarity or impose disproportionate costs on the regulated community.

The Department developed two alternative proposals for consideration and presented them to the Mining and Reclamation Advisory Board (MRAB) at its meeting of October 3, 1996. The first of these alternatives, in addition to providing clarity and changing those regulations found to be more stringent than federal requirements, would have changed the existing EQB rulemaking process to a Department decision-making process. This "adjudicatory" version provided for a public hearing early in the petition review process, reduced the time necessary to make a final decision on the petition by approximately one year, and would have subjected Department decisions to review by the Environmental Hearing Board. The MRAB recommended that the EQB consider an adjudicatory decision-making process for proposed rulemaking (MRAB letter of October 21, 1996).

The second alternative would retain the existing EQB rulemaking process. Subsequent to the MRAB meeting, the Department modified this "legislative" version. Under this approach, the Department makes a recommendation to the EQB within 12 months of receipt of a complete petition. Where the EQB decision is that an area should not be designated, the petition process would end with the publication of the EQB decision. If the EQB decision is that the area should be designated, the Department would submit a proposed rulemaking in accordance with existing procedures. Although this process does require additional time to reach a final decision, it also provides a more significant level of public participation in decisions concerning the designation of areas as unsuitable for mining and is consistent with the Administration's objective to improve public access to information and decision making in the Department.

The amendments were adopted by the EQB, as proposed rulemaking, at its meeting of October 21, 1997, and published in the Pennsylvania Bulletin on February 14, 1998, with a 60-day public comment period (Pennsylvania Bulletin, v. 28, no. 7, February 14, 1998).

The Department received comments on the proposed rulemaking from the Pennsylvania Coal Association and from the Independent Regulatory Review Commission. These comments, and the Department’s response, are contained in the attached Comment and Response Document.

Based upon the comments received and our own evaluation of the proposed rulemaking, the following changes were made to the draft final rulemaking:

86.101. Definitions.

In the definition of fragile lands, the reference to areas where surface mining operations are prohibited under Section 4.5(h) of SMCRA has been deleted.

86.125. Procedures: hearing requirements.

The phrase "or as otherwise established by the Department" has been deleted from 86.125(i).

86.126. Procedures: decision.

Subsection (b) has been changed to delete the term "regulatory" and add paragraph 1 and 2 to clarify EQB action on decisions to designate areas as unsuitable and action on decisions not to designate areas as unsuitable. Statutory citations have also been clarified.