PROGRAM ISSUE COMMENTATOR
NUMBER
| Mining and Reclamation | 30 day cap on civil penalties for failure to abate a violation Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 4.5(i) of SMCRA; 315(o) of CSL; 6.1(h) of CRDCA: prohibit mining within 100 feet of a stream, (standard of proof "beyond a reasonable doubt") more stringent than Feds. Response - Statutory changes would be needed. | |
| Mining and Reclamation | 86.1 & 86.37(a)(8): There is no corresponding federal definition for the state definition of "related party" which has the potential to expand the scope of entities subject to permit blocks. Although, as the Department points out, all of the relationships in the definition of "related party" are contained in the federal definition of "owner or controlled" at 773.5, the federal definition excludes persons or entities owning less than 10% of the company's stock. Response - Discussions with commentators are continuing. | |
| Mining and Reclamation | 86.1 - "Valid Existing Rights" definition is more stringent than federal definition. Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 86.1 - Definition of complete application Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 86.101 - Definition of "public building" is more stringent since it could be construed to include buildings used for "other group gatherings" Response - Agree, regulation should be changed for purposes of clarity and consistency. | |
| Mining and Reclamation | 86.102 - The reference in 86.102 to the definition of VER in 86.1 should be deleted or the definition at 86.1 should be modified to reflect the federal definition. Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 86.102 - The state restriction against conducting surface mining operations within 100 feet of a stream is more restrictive than the federal standard. Although the state's standard of proof "beyond a reasonable doubt" has its basis in PA SMCRA (4.5I), it still creates a more stringent standard. Following appropriate Department review, this is one issue that can be addressed by statutory amendments. Response - Statutory changes would be needed. | |
| Mining and Reclamation | 86.102(9) - The state restriction on mining within 300 feet of an occupied dwelling is more stringent than the federal standard. Also involves the VER issue. Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 86.122 - Discretionary criteria for UFM petitions. PCA recognizes that a "prm" has been approved by the EQB on September 19th. Would this be a proper vehicle to make other changes to 86.122 to bring the state regs in line with the fed regs? Response - Agree, current & additional changes to this regulation are being developed to insure clarity & be in line with Fed. Reg. | |
| Mining and Reclamation | 86.124(a)(b) - UFM Permit Blocks Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 86.129 - Pa requirements for exploration in UFM areas are more stringent than fed. regs Response - Agree, regulation should be changed for clarity & consistency. | |
| Mining and Reclamation | 86.142: Definition of "self-bond" is more stringent than fed definition. Response - Regulations will be reviewed and revised within constraints of PA SMCRA. | |
| Mining and Reclamation | 86.143(c): PA req. bonds to apply to entire permit area; fed allows incremental bonds to apply only to areas for which posted. Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 86.156 & 86.160: Self-bonds excluded and does not allow them to be combined with other forms of bonds. Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 86.159(a)-(s): self bonding Response - Regulations will be re-examined to see if changes can be made within constraints of PA SMCRA. | |
| Mining and Reclamation | 86.181 & 86.182: bond forfeiture regs more stringent Response - No change, since PA's bond rates are relatively low (compared to full cost of reclamation) and this tends to offset the more stringent forfeiture process/ | |
| Mining and Reclamation | 86.193(d)(e)(f): minimum mandatory civil penalty amounts in areas not covered by permit
Response - Agree, regulations should be changed. | |
| Mining and Reclamation | 86.195: individual civil penalty reg more stringent Response - Agree, regulations should be changed. | |
| Mining and Reclamation | 86.201 Pa's assessment procedures more stringent Response - Agree, regulations should be changed. | |
| Mining and Reclamation | 86.37(a)(10): Permit Block regs for pattern of willful violations more stringent than fed law Response - Statutory change may be needed. | |
| Mining and Reclamation | 86.37(a)(3): The requirement for the applicant to demonstrate and DEP to find that there is "no presumptive evidence of potential pollution of the waters of the Commonwealth" is an undefined and ambiguous standard with no corresponding federal regulation. Response - Some clarification should be made to this regulation, while remaining consistent with the PA Clean Streams Law. | |
| Mining and Reclamation | 86.37(a)(4): OSM's regulation requires prevention of material damage to the hydrologic balance outside the permit area. PA's regulation requires prevention of damage both within and outside the permit area. The distinction is not only the scope but also the difference in OSM's standard to minimize damage versus PA's standard to prevent to the maximum extent possible. Response - Some clarification should be made to this regulation, while remaining consistent with the PA Clean Streams Law. | |
| Mining and Reclamation | 86.37(a)(b): PHMC listed and eligible for listing on the National Register in PA reg vs. only listed in fad reg. Also PA standard of "preventing any adverse effect vs. fed standard of "taking the resource into account and protecting it (include. repair or remediation). Response - Some clarification may be necessary. | |
| Mining and Reclamation | 86.40(b) - Extension of permit term Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 86.64(b)(1)&(2): Right of Entry regs and 86.64(c)(d) & (e) exceed fed program. Also no state reg comparable to fed reg 778.15(b)(3) providing option for submitting other documentation to substantiate authority to extract coal. Response - Agree, in part, that some changes are needed. Statutory provisions must still be achieved, however. | |
| Mining and Reclamation | 86.83; 86.88; 86.93(a) & 86.94: SOAP requirements exceed fed standards Response - The regulations have already been revised to address this. | |
| Mining and Reclamation | 87.1, 89.5, 90.1 - "Perennial Stream" definition is more stringent and burdensome than federal definition Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 87.101: protection of the hydrologic balance more stringent: prevent to the maximum extent possible vs. minimize Response - The regulation should be changed for clarity. | |
| Mining and Reclamation | 87.102; 89.32; 90.102: PA regs do not provide for the manganese exemption for certain alkaline discharges and require a manganese limit on stormwater runoff discharges Response - The commentator is incorrect, in regard to the alkaline manganese provision. The stormwater provision should be changed. | |
| Mining and Reclamation | 87.106: Discrepancy in Protection For Sediment Control Measures
- "Prevent to the maximum extent possible" vs "minimize". Response - The regulation should be changed for clarity. | |
| Mining and Reclamation | 87.11 - 87.21: PA's licensing program more stringent that Feds because requires that operators be licensed. Renewal of licenses for underground mining should not be used as an enforcement tool. Response - Statutory amendments are in process which allow for a regulation change to address some of these concerns. | |
| Mining and Reclamation | 87.127(f)(1),(2), and (3): blasting regs more stringent because no similar fed provisions Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 87.138; 89.65; 89.82 & 90.150: "Prevent" vs. "Minimize"
standard relative to impacts on Fish and Wildlife. Response - The regulation should be changed. | |
| Mining and Reclamation | 87.146&89.87: regrading and stabilizing rills and gullies more stringent Response - The regulation should be changed. | |
| Mining and Reclamation | 87.156 & 89.86(g)(2): no fed provision for measuring revegetation success Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 87.159(b)(3) &(4): no corresponding fed provision to consider
historic land use relative to post-mining land use. Response - The commentator is partly correct, and (b)(4) should be revised. | |
| Mining and Reclamation | 87.159(c)(2)-(6): postmining land use variances Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 87.160: PA's prevention standard vs. OSM's reg re: control or prevent in accord with prudent engineering practices Response - The regulations should be changed for clarity. | |
| Mining and Reclamation | 87.166 & 89.90: restoring haul and access roads Response - The regulations should be clarified. | |
| Mining and Reclamation | 87.173(a) & 89.67(a): "support facilities" more stringent: Prevent vs. minimize Response - The regulations should be clarified. | |
| Mining and Reclamation | 87.176(d) DEP's reg prohibits auger mining "to the rise" while OSM's regs contain no such prohibition. Delete because 87.176(e) is consistent with fed reg. Response - OSM regulations allow states to adopt such restrictions where necessary. Discussion with commentator are continuing. | |
| Mining and Reclamation | 87.77; 89.38(b) & (c); 90.40: PHMC issues Response - The regulation should be re-examined to confirm Federal requirements and revised as needed. | |
| Mining and Reclamation | 87.93(a)(2): casing and sealing of drilled holes is more stringent (prevent vs minimize) Response - The regulation should be revised for clarity. | |
| Mining and Reclamation | 87.95: substitutes or supplements for topsoil not allowed Response - The regulation should be revised for clarity, to the extent compatible with PA SMCRA. | |
| Mining and Reclamation | 88, 89, and 90: 10 year 24 Hour Storm Event: Eliminate Group C Parameters from the regs in Chapter 88, 89 and 90. Adjust the exemption language to reflect this deletion. Revise Subparagraph 88.93(a) and chapters 88.292, Chapter 89, Subchapter B at 89.52 and Chapter 90, Subchapter D at 90.102 to reflect the deletion. Response - The current regulations reflect Federal (EPA) requirements at 40 CFR 434 and cannot be made less stringent. | |
| Mining and Reclamation | 89.143(a)(3)prohibiting mining beneath structures when cover less than 100 feet
Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 89.144: public notice requirement for notifying property owners
of upcoming underground mining (use of certified mail). Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 86.193(b): threshold for assessing civil penalty more stringent than Federal regulations Response - Agree, regulation should be changed. | |
| Mining and Reclamation | 89.36(b) & 89.54(a) - DEP's interpretation of "gravity discharge" under 89.54(a) is broader in scope than the federal definition Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 89.5; 89.34; 89.,35; 89.36; 89.141; 89.142; 89.143; 89.145; 89.146: PA's regs will be revised to incorporate the recently modified OSM subsidence regs and provisions of Act 54 of 1994. We want to participate in this process. Response - Commentator will be involved in the Act 54 regulation development process. | |
| Mining and Reclamation | 89.54 & 89.83: "gravity discharge" Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | 89.63: all noncoal waste characterized as hazardous Response - This comment has already been addressed through rulemaking. | |
| Mining and Reclamation | 90.122 - 90.125: Refuse piles Response - The regulations will be revised to eliminate non-applicable design and performance standards. | |
| Mining and Reclamation | Act 54 PGM Response - Discussions with commentator are continuing. Clarification will be made, as necessary, concurrent with Act 54 rulemaking development. | |
| Mining and Reclamation | Alkaline Addition: II:02:17 Response - Revision have been in process for some time. | |
| Mining and Reclamation | Alternative to point system for calculating civil penalties
Response - Agree, regulation should be changed. | |
| Mining and Reclamation | Amendments to Noncoal Surface Mining Conservation and Reclamation Act: DEP should develop regs authorizing general permits for categories of surface mining operation that are similar in nature and can be adequately regulated utilizing standardized specifications and conditions. Also DEP should develop and implement a general mine drainage permit for noncoal surface and underground mining operations. Response - Agree, several revisions are warranted. | |
| Mining and Reclamation | Assessment of penalties more stringent than OSM's point system Response - Agree, regulation should be changed. | |
| Mining and Reclamation | Barriers to parks and historic sites should not be statutory or regulatory but permit-specific Response - PA's regulations must be consistent with OSM's regulations. | |
| Mining and Reclamation | Blast plans review process: II:02:23 Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | Bond Adjustment: II:04:50 Response - Revisions will be made, if necessary, to reflect Act 173. | |
| Mining and Reclamation | Bond Release Procedure: Amend Stage I to a flat reimbursement to $1,200 per acre. Allow Stage II bond release upon planting, not until something is seen growing. For Stage III, hold a flat $450 per bonded acre. This will speed up the reclamation process. Response - PA's regulations must be consistent with OSM's regulations. | |
| Mining and Reclamation | Bond Release: II:04:12 Response - Revisions will be made, if necessary, to reflect Act 173. | |
| Mining and Reclamation | Bonding Credits: Make forfeited bonds available as a bond credit to an operator who permits that site and assumes the reclamation liability. Response - There is no statutory basis for such a provision. | |
| Mining and Reclamation | Coal Ash Placement: need serious revision/overhaul. Remove all impediments of ash placement at the most logical site: the mine pit. Response - Numerous changes to these regulations are already in process. | |
| Mining and Reclamation | Coordinated Statewide Mineral Resource Policy: Develop such a statewide policy integrating the entire DEP (i.e. Air, Land and Water Quality in addition to Mineral Resources). We also urge better communication between the Dept. of Commerce, PUC and DEP in developing this policy. Response - Further discussions with commentator are needed. | |
| Mining and Reclamation | Definition of a Public Park: Please revise definition (see letter for specific suggested language Response - Regulation will be examined for consistency with OSM's regulation. | |
| Mining and Reclamation | Eliminate prohibition of sedimentation pond construction at Chapter 87.108 as this is allowable in other PA permitted activities. Response - Placing sediment ponds in perennial streams is a clear violation of PA's Clean Streams Law and is not allowed in any DEP program regulations. | |
| Mining and Reclamation | Experimental practices: PA has no comparable regulation to the federal 773.13 which allows for the use of experimental practices or variances from regulations. Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | Fly Ash/Bottom Ash: I:1:6 Response - These PGM changes will be coordinated with the regulation changes. | |
| Mining and Reclamation | Gravity Discharge: DEP policy has maintained this limits coal extraction from a drift mine to no higher than the elevation of the portal although fed definition exempts discharges from a mine pool. Response - Discussions with commentator 112 and 113 will continue. | |
| Mining and Reclamation | Land Use Changes: II:02:12 Response - The PGM will be reviewed in conjunction with applicable regulation changes. | |
| Mining and Reclamation | Land Use Definitions: change them to those specific in Fed reg. 701.5 Response - The definitions will be reviewed and revised for consistency with OSM regulations. | |
| Mining and Reclamation | Lands Unsuitable for Surface Mining: several inconsistencies when compared to fed regs. Esp: Feds allow reg authority to exempt petitions where complete mine application has been submitted and first public notice published. In PA public often files petition in attempt to block permitting process after notice published and, if petition received, DEP will not issue the permit. Therefore, PA now leads states in number of such petitions filed. Response - Changes to these regulations will be made to address this concern. | |
| Mining and Reclamation | Memoranda of Understanding: Review the MOUs to see whether they have a bases in law or go beyond law and DEP's authority: DEP/PA Fish and Boat Comm., DEP/PHMC, DEP/PA Game Response - The MOU's will be reviewed. | |
| Mining and Reclamation | Mine Stability: II:06:54 Response - The PGM will be reviewed to determine if changes are appropriate in light of Act 54 and recent changes in Federal regulations. | |
| Mining and Reclamation | Perennial Stream Definition: needs to be changed to be consistent with federal regs at 30 CFR Section 701.5. Response - See related response to commentator 112 above. | |
| Mining and Reclamation | Perennial Stream Protection: II:06:55 Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | Perennial Stream: The insertion of biological parameters into the definition vastly expanded the range and number of streams now considered perennial. Response - See related response to commentator 112 above. | |
| Mining and Reclamation | Permitting Ventilation Boreholes...for Underground Mines: II:06:53 Response - Issues raised suggest case-specific concerns. Matter should be explored through discussions with commentator. | |
| Mining and Reclamation | Pit Variances/Equipment Removal: I:01:06 Response - The PGM will be reviewed. Discussions with commentator should continue relative to this issue. | |
| Mining and Reclamation | Provisions which allow for the blocking of a permit: delete section (iii)(E) of the definition "owned or controlled" in section 25 PA 86.1 Response - PA's regulations must be consistent with OSM's regulations. | |
| Mining and Reclamation | Public notice should be reduced to wording "will conduct surface mining activities." Response - Federal regulations require more detailed information than this.
We will review our regulations and procedures for consistency with Federal
requirements. | |
| Mining and Reclamation | Reclamation of Abandoned Pits: Adopt the position that operators can reclaim abandoned pits without posting bond to do so. It does not make sense to require an operator who is willing to reclaim an open pit for free to post bond. This discourages the reclamation process. Response - The proposed regulation for remining and reclamation incentives will allow this under certain conditions. | |
| Mining and Reclamation | Refine the requirements for noncoal underground mining and establish the criteria upon which DEP bases its determination. Response - Discussions with commentator should continue relative to this. | |
| Mining and Reclamation | Revise the policy that requires the consent of the surface landowner for a mine permit application because under the Federal Surface Mining Act, no advance consent of either the surface landowner or the owner of mineral rights is required. Response - Existing regulations are being re-examined in view of recent Court decisions. | |
| Mining and Reclamation | There is a practical difference between the Federal requirement to "minimize" and the PA version to "prevent to the maximum extent possible." The later opens up unlimited discretion to permit reviewers. Response - See several related responses to commentator 112. | |
| Mining and Reclamation | Treatment of Mine Pool Water (Subchapter G): Drop these regs. It would be more affective to simply require Best Available Technology practices. Response - Discussions with commentator are continuing. | |
| Mining and Reclamation | Utility notification: just have it be a notice, not approval. Response - See related response to commentator 112. | |
| Mining and Reclamation | Water Supply Replacement: II:06:5 Response - This PGM will be revised for clarity. Additional discussions with commentator are needed. Some related statutory changes are pending. | |
| Mining and Reclamation | Water supply requirements as now required are cumbersome and confusing. This additional burden is neither required nor necessary Response - This relates primarily to PGM II:06:5, which will be revised for
clarity. Additional discussions with commentator are needed. | |
| Mining and Reclamation | Because many quarrying operations affect existing wetland areas, DEP should work with members of PACA to develop reasonable policies for permitting in these areas, including the use of general permits authorizing quarry operations. Response - Further discussions with commentator are needed to review ongoing DEP program changes relative to wetlands protection. |