Regulatory Basics Initiative

Program Reports in Regulations

Bureau of Mining and Reclamation

The evaluation and recommendations in this report are intended to stimulate constructive discussion of how Pennsylvania's environmental requirements can be made more effective. It does not represent a final recommendation of the Department of Environmental Protection.

The Regulatory Basics initiative is a multi-step process for evaluating regulations and
policies using several factors: are requirements more stringent than federal rules without good reason, do they impose economic costs disproportionate to the environmental benefit, are they prescriptive rather than performance-based, do they inhibit green technology and pollution prevention strategies, are they obsolete or redundant or written in a way that causes significant noncompliance.

Recommendations for changing DEP regulations and policies will be made only after the evaluation process is complete and with the active participation of the public.


Regulations Which Contain Standards or Requirements More Stringent Than Federal Law

Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.1, 86.5 vs. 30 CFR 700.11

1 ­ Exemption from Regulation of Surface Mining. PA SMCRA and regulations do not have the same exemptions from regulation for certain categories of coal extraction as contained in the federal regulations.

The federal regulations provide exemptions for coal extraction:

(1) By a landowner for his own noncommercial use.

(2) Of 250 tons or less.

(3) In connection with government financed highway construction.

(4) Not exceeding 16 2/3% of the total tonnage of coal and other minerals removed for commercial use.

(5) For small mining and reclamation operations with total affected areas of 2 acres or less.
Section 3 of PA SMCRA and regulations have never contained all of the exemptions found in 700.11. Section 4 of PA SMCRA requires every person to obtain a permit before mining coal. This was PA law prior to the enactment of federal SMCRA.

When the General Assembly amended PA SMCRA to obtain primacy the stated purpose of the amendments was to maintain primary jurisdiction over coal mining in PA, to wit: "It is the intent of this act to preserve existing law to the maximum extent possible."

The full range of federal exemptions were not added because they were not needed to obtain primacy. Consistent with the General Assembly's stated intent, when the EQB amended the regulations it did not include these exemptions. The EQB stated: "These revised regulations are needed to increase the flexibility with which the coal mining industry can comply with the primacy regulations without jeopardizing or lessening the environmental performance standards in the [existing] coal mining regulations, . . . and to maintain and improve environmental protection standards."

Subpart (4) of the definition of "Surface mining activities" in Section 3 of the PA SMCRA does exclude "Activities not considered to be surface mining as determined by the United States Office of Surface Mining Reclamation and Enforcement and set forth in department regulations." This provision was primarily inserted in 1992 in anticipation of federal changes. It allows PA to more timely match a federal change through the regulatory process instead of waiting for the General Assembly to amend the statute.

Current status regarding exemptions (1)­(5):

(1) This is presently done by policy for coal extraction incidental to construction activities, generally where less than 2 acres of coal is involved.

(2) This is presently available only for "waiver" of permit in coal exploration situations where less than 250 tons of coal may be extracted during exploration (See 86.133 (e)).(3) This is presently done by policy provided that project contracts and specs provide for adequate environmental controls.

(4) Current regulations provide for this (See 77.3 and 86.5), but are much less burdensome and more flexible then OSM's regulations. Revisions are pending to conform to OSM's regulations.

(5) The federal "2­acre" exemption was suspended from OSM's regulation 700.11 for surface coal mining operations occurring after 11/8/87. It is therefore no longer available.

Recommendation

Amend PA SMCRA definition of "surface mining activities and related regulatory provisions to allow for a waiver of permit requirements for situations (1), (2) and (3).

Continue final rulemaking for situation (4) to be consistent with OSM's requirements.

 

Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.54(a) vs. 30 CFR 701.5 and 817.42

2 ­ Allowing for "gravity discharge" from an underground mine.

PA regulations do not include a definition of the term "gravity discharge". Where the term is used in PA regulations, PA interprets it to include discharges which result from the flooding of a mine to the level of the discharge. The federal definition of "gravity discharge" excludes such discharges and thereby exempts them from regulatory restrictions and prohibitions.
PA regulations are more stringent because of the requirements of Section 315 of the PA Clean Streams Law, and continuing experiences with underground mine discharges in PA. The Clean Streams Law prohibits any unpermitted discharge from a mine without regard to its nature or classification.

In PA, many pollutional discharges have resulted from the flooding of mines to the level of discharge. Once created, these discharges pose continuing threats to groundwater and surface water quality for decades or possibly centuries ­ time spans which exceed a mine operator's ability to provide treatment. PA therefore acts to prevent the potential occurrence of post mining pollutional discharges regardless of their classification under the federal system.

The term "gravity discharge" is not currently defined in PA regulation, however it is considered to include any surface discharge which flows from a mine opening or otherwise
discharges to the land surface. This encompasses more avenues of discharge than the definition provided in the federal regulation.

Recommendation

Retain the PA regulatory restriction on gravity discharges from underground mines.

Develop a clear definition of the term "gravity discharge" to eliminate any present misunderstanding over this regulatory provision.
Most underground coal mines in PA produce water that will pollute surface streams if it is discharged untreated. Published reports estimate that 70% of the current acid mine drainage pollution load on PA streams is due to closed underground coal mines. Section 315 of the PA Clean Streams Law was enacted in 1966 to curb underground mining practices which led to this widespread pollution.

Section 89.54 of PA's regulations may impact coal mining interests in several ways. It may force an operator to construct or acquire mine openings at sites which are economically less preferable to him. It may prevent an operator from expanding a mine beyond the limits of the original permit. It may prevent or restrict mining in parts of a coal reserve where coal or overburden strata must be left intact to confine the water which will accumulate following mine closure. Many of these economic obstacles can be reduced through proper planning. All of these

costs are more than offset by the cost of perpetually treating the pollutional discharge.

Although a mine operator may experience costs associated with 89.54 restrictions, these must be balanced against the need for clean streams and the tremendous economic liability which a mine operator may incur under Section 315 of the PA Clean Streams Law if a post mining pollutional discharge develops.

In 1993, DER surveyed the long­term (50 year) costs associated with mine water treatment liability at 13 underground mines which will have post mining discharges. These liabilities ranged from $0.4 million to $40 million with an overall average of $7 million. It should be further noted that there is no assurance that discharges will become non­polluting after 50 years. See attached Report to Governor dated September 24, 1993.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.1 vs. 30 CFR 701.5

3 ­ Definition of "operator."

The federal definition excludes anyone mining less than 250 tons per year at any one location. PA's definition does not exclude anyone mining less than 250 tons per year.
PA's definition is established by PA SMCRA.

Recommendation

No change to PA regulation until such time as PA SMCRA is amended. See related recommendations under Item 1.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.1, 88.1, 89.5 and 90.1 vs. 30 CFR 701.5

4 ­ Definition of "perennial stream."

PA regulations define perennial streams on the basis of biological criteria. The federal definition is based on flow and would qualify fewer PA streams as perennial.
Streams which qualify as perennial are generally provided greater protection than intermittent or ephemeral streams under PA and federal regulations. It is believed that fewer streams would qualify as perennial streams, if PA used the flow­based criteria prescribed in the federal definition.

There are, however, difficulties in applying the federal definition which can only be overcome by increasing data collection requirements. Litigation experience has proven that the continuous flow criterion is difficult to establish because historical flow records do not exist for most PA streams.

Recommendation

Retain the PA definition which is based on biological criteria.
Perennial streams are important resources deserving protection under PA's mining regulatory program.

While it is believed that fewer streams would be classified a perennial using flow­based criteria there is no assurance that the reduction would be substantial.

The collection of data necessary to substantiate that a stream flows continuously throughout the calendar year should be based on no less than weekly measurements over the course of a year in order to be defensible. This would require additional expense on behalf of the mine operator and require him to plan data collection well in advance of submitting a permit application.

By contrast the biologically based definition in the PA regulation can be substantiated in one or two surveys. In addition, these surveys can be conducted at any time so as not to delay application preparation.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.132 vs. 30 CFR 701.5

5 ­ Definition of "substantially disturb."

PA's definition includes impact, where OSM's definition focuses on "significant" impacts.
PA SMCRA does not define "substantially disturb." The definition in 86.132 specifies "an impact" where 701.5 specifies "significant impact." Section 86.132 was modified effective June 26, 1993 to correspond more closely with the federal definition. In OSM's initial review of the modified definition, OSM indicated the definition was less effective than the federal definition because it excluded the words "by removal of vegetation." OSM did eventually approve the current definition.

Recommendation

Change the definition to be more consistent with the federal definition.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.1 and 89.5 vs. 30 CFR 701.5

6 ­ Definition of "underground mining activities."

The PA definition includes an additional subsection which is not found in the federal regulation.
The additional subsection which appears in the PA definition comes from Section 315 of the PA Clean Streams Law. Section 315(a) states that "operation of a mine shall include preparatory work in connection with the opening or reopening of a mine, refuse disposal, backfilling, sealing and other closing procedures, and any other work done on land or water in connection with the mine." In essence the PA definition and federal definition are functionally equivalent.

Recommendation

Retain the current PA regulatory definition for consistency with PA law
There are no additional costs associated with application of the PA definition.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.1 vs. 30 CFR 761.11

7 ­ Definition of "valid existing rights."

PA's definition (86.1) is more restrictive than OSM's.
Section 4.5(h) of PA SMCRA ties the definition of VER to the definition in Section 522 of federal SMCRA.

Recommendation

Modify PA's regulation to reflect the provisions of Section 4.5(h) of PA SMCRA.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.194 vs. 30 CFR 701.5 and 843.5

8 ­ Assessment of penalties.

The federal regulations contain a definition of "willful violation" but there is no PA counterpart.
This term is not used in the federal regulations dealing with civil penalty assessment. The federal regulations do use something similar elsewhere: Section 843.13 dealing with pattern of violations refers to ". . . violations were caused by the permittee willfully . . ."; Section 846.5 defines "willfully"; Section 846.12 dealing with individual civil penalties refers to ". . . permittee who . . . willfully authorized . . ."; and Section 850.15 dealing with blasters certification refers to ". . . willful conduct . . .".

PA regulations do not contain a definition of "willful violation". This is a scienter requirement. In the absence of a regulatory definition the term is given its normal meaning. "Willful", as defined in Webster's Ninth New Collegiate Dictionary, means "done deliberately." It seems that this definition has the same meaning as that intended by the federal regulations. "Willful" has been defined in various EHB decisions.



Recommendation

Revise PA's regulations to define "willful" as in the federal regulations.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.5, 77.1 vs. 30 CFR 702.1­702.18

9 ­ Incidental extraction of coal.

PA's regulations (86.5) are more stringent than OSM's because they do not allow the extraction of coal which lies immediately below the noncoal mineral to be mined.
PA's proposed changes to 86.5 would not allow for incidental extraction of coal which lies immediately below the noncoal mineral to be mined. This is based on the limitations contained in PA's Noncoal SMCRA. Otherwise the proposed regulation is the same as OSM's regulation.

Recommendation

Develop an amendment to PA Noncoal SMCRA which would allow for incidental extraction of coal lying immediately below the noncoal mineral being mined.

Develop further changes to the PA regulation once the statutory changes are made.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.102 vs. no federal counterpart

10 ­ Restrictions to mining on state forest and game lands.

There are no federal restrictions on mining within state forest or game lands.
Although there is no federal counterpart, PA's restrictions on mining on state forest and game lands are analogous to restriction of federal regulations at Section 761.11 on federal forests, and wildlife areas with similar recreational uses.

PA does allow mining in state forest and state game land with the concurrence of the state agency responsible for those lands.

Recommendation

No change.
These regulations do not impose any undue burden on the coal mining industry. They are simply intended to allow the Commonwealth agencies (i.e., the surface landowners and, in some cases, the coal owners) the opportunity to work with the mining industry to allow mining and reclamation to occur in ways which protect these public land resources.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.102 vs. 30 CFR 761.11(e) and 761.12(e)

11 ­ Restrictions to mining within 300 feet of occupied dwellings.

PA regulations for a wavier to mine within 300 feet of an occupied dwelling requires consent of the current owner while the federal regulations allow mining if the previous owner knew about it when he purchased the dwelling.
Both PA and federal regulations require waivers to be knowingly made. Unlike PA regulations, federal regulations require (1) a written waiver clarifying that the owner and signator had the legal right to deny mining and knowingly waived that right, and (2) a waiver to remain effective against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase, with constructive knowledge considered as having been properly filed in public property records pursuant to state recordation law similar to the manner outstanding liens, easements or other property interests would be filed.

Recommendation

Change 86.102 to be more consistent with 761.11(e) and 761.12(e).
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.103 vs. 30 CFR 761.12

12 ­ Notification of agency with jurisdiction over parks.

PA regulation provides for Department notification of permit applications to the agency with jurisdiction over the "public park" which "may" be adversely affected while federal regulation requires Department notification for "publicly owned parks" that "will" be affected.
Under federal regulation, the notifications must be provided to only those public parks owned by governmental agencies while PA regulation provides for notifications to privately administered public parks dedicated or designated for public recreational use as well as government owned public parks. The Department practice has been to provide notifications to any public park entity which may be affected by the proposed mining activities.

Recommendation

Continue to provide notification to public parks which may be affected by the proposed mining activities and do not change 86.103(e) in this regard.
No additional cost will be placed upon the industry. Administrative costs will be incurred by the Department.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.124 vs. 30 CFR 764.15

13 ­ Areas Unsuitable for Mining (UFM) permit blocks.

PA regulations allow permit blocks in situations in which a UFM petition is received at any time during the public comment period on a permit application, while the federal regulation limits the period to the first newspaper advertisement.
PA regulations do provide a longer period for petitioners to initiate a "permit block" on pending applications.

Recommendation

Amend PA regulations to be consistent with federal regulation.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.133 vs. 30 CFR 772.11

14 ­ Exploration permits.

PA regulations require a permit or a permit waiver if coal will be removed during exploration. Federal regulations allow up to 250 tons to be removed under a notice of intent to explore.
Section 512(d) of federal SMCRA indicates no operator shall remove more than 250 tons of coal pursuant to an exploration permit without the written approval of the regulatory agency. Federal regulation requires a person who intends to conduct coal exploration during which 250 tons or less of coal will be removed to file a written notification of intention to explore. PA regulation requires a person who intends to conduct coal exploration to file a written notification of intention to explore with a permit required for removal of 250 tons or more and waiver of permits authorized if less than 250 tons is removed.

Recommendation

Change 86.133 to allow for a waiver of permit for up to and including 250 tons of coal removal during exploration.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.31(a)(6) vs. 30 CFR 773.13

15 ­ Public notice of stream variance.

PA regulation requiring public notice of stream variance requests is more stringent since federal regulation does not require specific reference to a stream variance.
PA regulation requires public notice of a variance to conduct mining activities within 100 feet of a stream based upon PA law (Section 4.5(i) of PA SMCRA and Section 6.1(H)(5) of the Coal Refuse Disposal Control Act).

Recommendation

Maintain requirement for public notice of a variance to conduct mining activities within 100 feet of a stream.
Industry costs would be minimal for public notice of a variance as part of the overall public notice for a new application. However, public notice for a variance after permit issuance (as a permit revision) would amount to more significant costs since a separate public notice would be necessary. The benefits of providing public notice and making current and planned water users aware of mining activities in close proximity to the stream would exceed costs involved with public noticing.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.37 vs. 30 CFR 773.15

16 ­ Written findings & permit issuance.

PA's regulations are stricter in regard to:

25 Pa. Code 86.37(a)(3) vs. no federal counterpart

(1) There is no federal regulation which corresponds to the concept of proving "no presumptive evidence of potential pollution of the waters of the Commonwealth."
The Concept of "presumptive evidence of potential pollution" is no more vague or ambiguous than the concept of "material damage to the hydrologic balance" in the federal regulations (which OSM has never really defined). (1) This requirement derives from PA's pre­primacy coal mining regulations, Section 99.35, which has long been an important concept under PA Mining law.

In 1980 a task force, the "Ad Hoc Task Force on Mining Legislation" developed statutory and regulatory changes to attain primacy, including 86.37(a)(3). The task force was composed of industry, environmental, government, public interest and labor representatives.

There is no express statutory provision in the PA Clean Streams Law (CSL) stating that a mine operator must demonstrate "no
presumptive evidence of potential pollution to the waters of the Commonwealth" prior to mining; however, the CSL does provide a basis for such a requirement.

In Section 4 of the CSL, the legislature affirms the importance of preventing pollution to the waters of the Commonwealth and reclaiming already polluted waters.

Section 3 of the CSL specifically states that discharges which "create [ ] dangers of pollution" is not a "reasonable or natural use ... is against public policy and is a public nuisance."

Section 402 of the CSL (which addresses potential pollution) also shows the importance that the legislature places on preventing potential pollution.

Section 4(a)(2)(G) of PA SMCRA requires the Department to deny a permit application if the operator's mining plan fails to provide a practicable method of avoiding acid mine drainage and other stream pollution during and after mining.

Finally, Section 4(d.2) of PA SMCRA reiterates that existing law prohibits PA from issuing a mining permit unless the applicant demonstrates that there is "no presumptive evidence of potential pollution of the waters of the Commonwealth." It should be noted that Section 4(d.2) was added to PA SMCRA in 1992 as part of a package of amendments (Act 173) which had been negotiated with the coal mining industry. Moreover, several EHB cases, and a few Commonwealth Court cases (Harman Coal Co. v. DER, 384 A.2d 289 (1978)) have upheld PA's denial of mining permits on the basis that the applicant did not demonstrate that there was no presumptive evidence of potential pollution of the waters of the Commonwealth.

Recommendation

Retain the regulatory provision of "no presumptive evidence of potential pollution of the waters of the Commonwealth," but develop a clear regulatory definition of this concept to provide additional guidance to the regulated community.
(1) Retaining this regulatory concept, while adding some clarifying definition, would greatly benefit the industry and the Department by eliminating much of the ambiguity associated with the concept.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.37(a)(4) vs. 30 CFR
____


(2) OSM's regulations only require prevention of material damage to the hydrologic balance outside the permit area. PA's regulations require prevention of damage both within and outside the permit area.
(2) Section 315(c) of the PA CSL provides that a mining permit application must include a determination of the probable hydrologic consequences of the operation, both on and off site of the operation.

While the regulatory language may be different, it is unrealistic to consider the notion that material damage to the hydrologic balance outside the permit area (OFF­permit) can be distinguished from similar damage within the permit area (on­permit). Mining­related damage which occurs off­permit always originates on­permit. In fact, such on­permit damage may be far more serious than what occurs off­permit. The provisions of Section 315(c) of the PA CSL simply reflect this reality, as do the above­mentioned provisions in both the PA CSL and PA SMCRA which support the concept of "no presumptive evidence of pollution" (which makes no distinction between on­permit and off­permit pollutional impacts).

Recommendation

Retain the current wording of the PA regulation.
2) There really is no additional cost being imposed upon the mining industry by virtue of this difference in regulatory language. PA's regulation is simply more realistic in terms of recognizing the inter­relationship between "off­permit" and "on­permit" damage to the hydrologic balance.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.40(b) vs. 30 CFR 773.19(e)(2)(ii)

17 ­ Extension of permit term.

PA regulation allows for extension of time to commence mining activities if litigation delays commencement or threatens substantial economic loss. Federal regulation allows for extensions for the same reason in addition to where circumstances exist beyond the control and without the fault or negligence of the permittee.
PA has allowed permittees at inactivated sites to extend permit terms through the permit renewal process.

Recommendation

Change 86.40(b) to be consistent with 30 CFR 773.19(e).
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.64 vs. 30 CFR 778.14 and 15

18 ­ Right­of­entry regulations.

PA's regulations are more stringent in regard to the following:

(1) PA regulation 86.64(b)(1) requires written consent of the current surface owner. OSM's regulations recognize consent of predecessor owners.

(2) PA's regulations 86.64(b)(2) requires applicants to submit the documents of conveyance for right of entry plus an abstract of title relating these documents to the current surface owner. OSM regulations do not require the title abstract.

(3) OSM's regulations provide an option for applicants to provide other documentation as to the legal authority to extract coal by surface mining. PA's regulations do not provide this.

(4) There are no federal counterparts to 86.64(c), (d) or (e) relative to right of entry.
Requiring the abstract of title enables the operator to more clearly demonstrate that he has the right to extract the coal by surface mining. It allows for a more timely review and approval of a permit application.

Recommendation for (1), (2) and (3)

Revise PA regulations to be consistent with federal requirements.

86.64(c) is taken verbatim from 4.a(2)(F) of PA SMCRA. In addition 315(g) of the PA CSL requires this provision.

86.64(d) is intended to explain terminology in 86.64.

86.64(e) is consistent with federal requirements that right of entry information be submitted with the permit application.

Recommendation for (4)

Revise 86.64(c) to more clearly show that this supplemental right­of­entry provision, required by PA law, is in addition to the requirements of 86.64(a) and (b).
The right­of­entry provisions reflected in 86.64(c) have been in PA mining law since 1968. This supplemental right­of­entry has played an important role in resolving or avoiding disputes which can arise between a property
owner and a surface mine operator during the course of mining. Thus, a property owner who feels annoyed in some fashion with the mine operator cannot unilaterally force the operator off his surface property. This becomes extremely important during the reclamation stages of a mining activity (after coal removal is complete) when the operator must have continued access to the property to carry out his legal obligation to reclaim his mine site and (if necessary) to address post­mining environmental problems.

The provisions of 86.64(c) make it clear that this supplemental right­of­entry also authorizes the Department or its agents to enter the property for the purposes of inspecting the mine site and to carry out reclamation work should the mining operation be abandoned and bonds forfeited. Again, this becomes important in assuring that Department­sponsored reclamation will occur in a timely fashion.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.67 vs. 30 CFR 778.18 and 800.60

19 ­ Self­insurance.

PA regulations do not contain any self­insurance provisions. Federal regulations allow self­insurance.
There are no self­insurance provisions in PA SMCRA or PA's regulations. This provision was in PA SMCRA, but was voided by 3.1(c)(3) of PA SMCRA one year after enactment.

Recommendation

No change unless PA SMCRA is amended to allow self­insurance.
Unless PA SMCRA is amended to provide for self­insurance, any attempt to determine the cost to operators is impossible.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.70 vs. 30 CFR 778.21

20 ­ Permit Application ­ Proof of Publication.

PA regulation requires a copy of the newspaper advertisement and the original notarized proof of publication. Federal regulation requires a copy of the newspaper advertisement or proof of publication.
PA regulation requires an original notarized copy of the permit applicant's newspaper advertisement while federal regulation allows for a copy of the newspaper advertisement or proof of publication acceptable to the state regulatory agency.

Recommendation

Change 86.70 to require a copy of the notice to be published be included with the permit application and a copy of the notice as published be submitted as proof of publication.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.11­21 vs. no federal counterpart

21 ­ Licenses.

The PA coal mining regulations and SMCRA require a license to mine coal. There is no federal licensing requirement.
The license provisions are required by Section 3.1 of PA SMCRA. These provisions predate passage of federal SMCRA and were retained by the General Assembly as part of the primacy amendments to PA SMCRA. The license requirement has proven to be an effective tool in obtaining and maintaining ownership and control information, liability insurance coverage and, on an annual basis, a clear compliance status.

Recommendation

No change to regulations or statute.
Cost to the operator is the annual fee, completion of the renewal application and the cost of having all operations in compliance at the same time. Benefit is the income to the Surface Mining Conservation and Reclamation Fund and the environmental benefits of having all of an operator's surface mines in compliance at least once a year.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.54(a) vs. 30 CFR 779.24(d)

22 ­ Permit application information.

PA regulation requires a permit applicant to identify the location, names of owners and present occupants and current use of buildings on and within 1000 feet of the proposed permit area. Federal regulation only requires a permit applicant to identify the location and current use of buildings.
Section 4(a)(1) of PA SMCRA requires names and addresses of the owners and present occupants of buildings be identified by the permit applicant. Names and addresses of owners and the present occupants of buildings is important permit information for implementing various mandates of PA SMCRA such as pre­blast survey requirements and rebuttable presumption for water supply replacement.

Recommendation

Maintain requirement for permit applicants to provide names and addresses of owners and present occupants of buildings
The benefits of providing adequate protection to the public from such things as water supply loss and blasting damage to buildings outweighs any additional costs incurred by a permit applicant to identify owners and occupants of buildings.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.77, 89.38(b) and (c), 90.40 vs. 30 CFR 780.31

23 ­ Protection of public parks.

PA regulations require operators to protect a wider range of public parks than the federal regulation.
PA regulation provides protection to more than just government owned parks by referencing "public parks" instead of "publicly owned parks" (see discussion under Item 12). Federal regulation only addresses government owned parks.

Recommendation

Continue to provide protection to privately owned parks dedicated or designated for public use as well as the government owned parks.
The measures a mine operator may have to take to prevent or minimize damage to these public parks would likely be of less economic cost than the economic benefits of the public park. A more definitive analysis is difficult because the economic benefits of recreation provided by public parks are not readily quantifiable.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.36(b) and 89.54 vs. 30 CFR 817.41(l)

24 ­ Preventing discharges from underground mines.

PA regulations require that mines must be designed to prevent post mining discharges. Federal regulations only require that mine entries must be located to prevent gravity discharges.
See response to Item 2.
See analysis under Item 2.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.5, 89.34­89.36, 89.141­89.143, 89.145 and 89.146 vs. 30 CFR 701.5, 784.10, 784.14, 784.20, 817.10, 817.41, 817.121, and 843.25

25 ­ Provisions of federal regulations promulgated under the Federal Energy Policy Act.

PA regulations do not include subsidence control, subsidence damage repair and water supply replacement provisions similar to those in the federal regulations which were promulgated on March 31, 1994.
PA regulations need to be revised to incorporate the amendments to BMSLCA which are found in the provisions of PA Act 54 of 1994 as well as those parts of the federal regulations which may be more stringent than Act 54. The provisions of Act 54 supersede any current PA regulations which are inconsistent with the provisions of Act 54.

Recommendation

PA regulations should be revised to reflect current state law and federal regulations.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
No PA counterpart vs. 30 CFR 785.13

26 ­ Use of experimental practices and variances from environmental protection performance standards.

PA regulations lack provisions for experimental practices and variances from environmental protection performance standards.
PA regulations do not provide for the use of experimental practices and variances from environmental performance standards. The reason is that neither the PA Clean Streams Law nor the PA SMCRA provide for such practices and variances.

By policy DEP has made provisions to allow for innovative practices. These are similar to experimental practices except that they do not allow variances from environmental protection performance standards.

Recommendation

PA regulations should not be revised to provide for experimental practices and variances from regulation unless PA law is changed to authorize such revisions.
Under the PA program, operators are allowed to pursue innovative practices. This option provides for all or most experimental practices that would be permissible under the federal program.

By allowing innovative practices, PA has spared operators the cumbersome process specified in federal regulations for obtaining approval to conduct experimental practices. Under the federal program, each experimental practice must be approved at both the state and federal levels. By streamlining this process, the PA program saves operators time and expense.

The use of innovative or experimental practices is of direct concern to only a small number of operators. Both PA and federal programs limit the number of sites where such practices are allowed until the practices are proven effective.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.84 vs. 30 CFR 795.7

27 ­ SOAP applications.

PA regulations require more information on applications for SOAP assistance than do the federal regulations, as follows:

­ natural drainage above and below the proposed affected area

­ names of property owners within and adjacent to the affected areas

­ existing structures and developed water resources within and adjacent to the affected areas.
The information requirements of 86.84 are necessary because PA's SOAP program is based on pre­approved contracts which authorize work to be done on a cost per unit basis. Without information concerning the number and ownership of properties in the application for assistance no work orders could be issued. This information replaces the "request for bid" (RFP) and contracting bid and award procedures used in other state contracting. Thus, SOAP services are provided in a more timely fashion.

Recommendation

No Change.
This same information must ultimately be submitted with the formal permit application for the mining activities.

The applicant actually benefits by receiving payment under the SOAP program for collecting this information.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.142 and 86.158 vs. 30 CFR 800.5 and 800.21

28 ­ Collateral Bonds.

PA's definition of "collateral bond" is more stringent than the federal definition because OSM permits the use of a perfected first­lien security interest in real property as collateral for a bond. PA does not allow the use of real property as collateral for bonds.
Section 4(d) of PA SMCRA authorizes the specific types of collateral that may be accepted by PA. PA SMCRA does not authorize real property as collateral for bond. Furthermore, the types of collateral which are acceptable under PA law and regulation are those whose value may be determined with a reasonable degree of accuracy and which are quickly converted to cash.

Recommendation

No change to statute or regulation.
Cost is unknown although the use of a first­lien security in real property may allow some operators to bond ore acreage. Benefits are realized by the Commonwealth and reflect ease of converting the bond to cash in event of forfeiture.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.142 vs. 30 CFR 800.5

29 ­ PA's definition of "self­bond" is more stringent than the federal OSM definition.
See response to Item 34.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.143 vs. 30 CFR 800.11

30 ­ Bonding.

PA regulation 86.143 requires bonds to apply to the entire permit area. The federal regulation 800.11 allows bonds to be applied only to incremental areas of the permit or the entire permit area.
Section 4(d) of PA SMCRA and Section 315(B) of PA Clean Streams Law make reference to filing bond for the entire permit area. Applying bonds to the entire permit area provides (a) flexibility to the operator for moving bond guarantees from one area or bonding increment to another area with minimum administrative processing involved (e.g. bond rollover), (b) more assurance to the Commonwealth that adequate bond exists to cover unanticipated pollutional discharges which may result on any part of the permit area, and (c) to some degree, an argument against increasing bonding rates to full cost bonding.

Recommendation

No change to regulation or statute.
Any increased cost to the operator is only realized upon bond forfeiture or the occurrence of a post mining discharge prior to bond release. The benefit is the considerable savings by not having full cost bonding.

See related discussion under Bond Forfeiture.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.151(b) vs. 30 CFR 800.13

31 ­ Bond liability for mine subsidence.

PA regulations require a 10 year period of bond liability. Under federal regulations the period of extended liability is only 5 years.
The 10­year period of bond liability in PA regulation is based on PA law. Section 6(b) of the PA Bituminous Mine Subsidence and Land Conservation Act requires that bond liability continue for the duration of the mining or mining operation, and for a period of 10 years thereafter or such longer period of time as may be prescribed by rules or regulations.

Recommendation

Retain 10­year period of liability required by current PA regulation to be consistent with current PA law.
Subsidence can occur many years or decades after mining is complete. Under current law, a mine operator is responsible to repair or compensate property owners for subsidence damage to certain structures whenever such damage occurs. The PA regulation ensures that the operator will assume this responsibility for a period of at least 10 years.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.152 vs. 30 CFR 800.15

32 ­ Bond adjustment.

OSM's regulations provide permittees with the opportunity for an informal conference on bond adjustment requests, while PA has no such provision.
PA's bond adjustment regulations do not provide for informal conference on bond adjustments. The PA regulation also does not require PA to notify the surety or any person with a property interest in the collateral, as is required by the federal regulation.

Recommendation

Revise PA regulations to be consistent with federal requirements.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.156 and 86.160 vs. 30 CFR 800.12

33 ­ Self­bonding.

PA's regulations (86.156, 86.160) describing acceptable forms of bond do not recognize self­bonding, while OSM's regulations do. PA's 86.160 does not allow self­bonding to be combined with other forms of bonds.
PA's regulations (86.159) explicitly provide for self­bonding. Lack of mention in 86.156 and 85.160 is a technical oversight.

Recommendation

Revise PA regulations to be consistent with the federal requirements.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.159 vs. 30 CFR 800.23

34 ­ Self­bonding.

PA's self­bonding regulations are more stringent than OSM's regulations, specifically:

* 86.159(a)

* 86.159(b)(4)

* 86.159(b)(5) and
* 86.159(b)(6)

* 86.159(c)(1)

* 86.159(c)(3)

* 86.159(c)(4)

* 86.159(c)(5)

* 86.159(c)(6)

* 86.159(f)(1)(i)

* 86.159(f)(1)(ii)

* 86.159(f)(1)(iii)

* 86.159(f)(2)(iii)

* 86.159(f)(2)(iv)

* 86.159(f)(3)(iv)

* 86.159(g)

* 86.159(j)

* 86.159(k)(3)

* 86.159(l)(2)

* 86.159(n)

* 86.159(o)

* 86.159(q)

* 86.159(s)

86.159(a) is more stringent in that a self­bond may not be used to cover treatment of post mining discharges and prime farmland restoration as PA felt long­term reclamation obligations should not be matched to short­term financial positions. If a permittee did not qualify to continue to self­bond, it would need to replace the self­bond with a large traditional bond when it had a lessened capacity to do so, or failing to do so, PA would be left with long­term obligations unbonded.

86.159(b)(4) tracks the language of PA SMCRA Section 4(d)(3) and is a requirement.

86.159(b)(5) and 86.159(b)(6) implement the PA SMCRA Section 4(d) requirement that an applicant demonstrate to the satisfaction of PA a history of financial solvency, continuous business operation and continuous efforts to achieve compliance with all United States of America and PA environmental laws. PA felt applicants who were subsidiaries of Parent Corporations or who themselves use self­bonding or self­insurance are in compliance with these federal laws and regulations and meet the PA SMCRA requirements.

86.159(c)(1) tracks the language of PA SMCRA Section 4(d)(2) and is a requirement.

86.159(c)(3) is a blend of the PA SMCRA Section 4(d)(2) requirement and OSM regulation at 800.23(b)(4)(i). Incorporation of the PA SMCRA requirement makes this more stringent.

86.159(c)(4) tracks the language of PA SMCRA Section 4(d)(11) and is a requirement.

86.159(c)(5) tracks the language of PA SMCRA Section 4(d)(7) and is a requirement.

86.159(c)(6) tracks the language of PA SMCRA Section 4(d)(10) which grants PA the authority to request this information. OSM regulations at 800.23(b)(4)(iii) grants similar authority to a Regulatory Agency but limits the scope to financial information.

86.159(f)(1)(i) adds the requirement that a bond rating not be the result of the bond issue being independently insured. A rating of a bond issue is a product of an issuer's financial strength and credit­worthiness. The use of insurance masks the result of such evaluation.

86.159(f)(1)(ii) tracks the language of PeA SMCRA Section 4(d)(5) and is a requirement.

86.159(f)(1)(iii) PA felt this requirement would assure a self­bonded permittee's assets could be reached through a legal action if a forfeiture occurred and the security interest was either not fully collectible or not sufficient to cover the cost of reclamation.

86.159(f)(2)(iii) same as 86.159(f)(1)(iii) above.

86.159(f)(2)(iv) same as 86.159(f)(1)(iii) above.

86.159(f)(3)(iv) same as 86.159(f)(1)(iii) above.

86.159(g) is similar to OSM regulations at 800.23(b)(4)(i) with the exception PA does not accept a review opinion. A review opinion does not have the depth of examination an audit opinion does. PA does not accept a disclaimer of opinion because this means the accountant could not assure himself/herself of the accuracy of the financial information. PA does not accept an opinion that is not stated as adverse but means the same thing such as a "going­concern" opinion which expresses doubt that, absent certain events, the entity under review could continue in business.

86.159(j) incorporates the concepts of OSM regulations at 800.23(e)(2) requiring applicants for self­bonding to execute an indemnity agreement, but adds the requirement that the liability be secured by the applicant providing collateral. PA is authorized by PA SMCRA Section 4(d)(8) to require the pledge of real or personal property to secure the self­bond. PA felt that without the pledge of collateral, PA would be an unsecured creditor. PA felt it needed the protection of being a secured creditor in the event of a forfeiture or bankruptcy of a self­bonded permittee.

86.159(k)(3) allows the self­bond to be converted into cash collateral if the permittee violates any of the terms and conditions of the self­bond.

86.159(l)(2) When a subsidiary corporation is the self­bond application, the parent corporation is required to be joint and severally liable with the subsidiary on the self­bond. PA felt it necessary to have this additional protection in the event of a forfeiture.

86.159(n)
86.159(o) These provisions provide PA authority to require different forms of collateral with protections against diminution in value of the collateral during the period of the self­bond. These provisions amplify the provisions of 86.159(j).

86.159(q) provides automatic ineligibility to continue to self­bond if a default or forfeiture occurs. PA felt that a default or forfeiture is proof the permittee is not in compliance with PA SMCRA Section 4(d) requiring continuing efforts to achieve compliance with all United States of America and PA environmental laws and is thus ineligible to self­bond.

86.159(s) This tracks PA SMCRA Section 4(d)(13) and is a requirement.

Recommendation

Retain current PA regulations on self­bonding.
While there are some significant differences between PA and federal regulations, many of these are attributable to provisions in PA SMCRA. Where PA SMCRA provides for some discretion, the Department has chosen a conservative application of that discretion. For example ­ Section 4(d)(E) of PA SMCRA allows the Department on a case­by­case basis to require a permittee to pledge real and personal property to guarantee his self­bond, whereas PA regulation 86.159(j) requires this of all permittees wishing to engage in self­bonding.

There are several various other aspects of PA's regulations which are mores stringent than the federal regulation. Again, the Department considers this to be a more prudent, businesslike approach then the federal approach. It is based upon many years of experience in dealing with bonding and other financial assurance mechanism
Even if the Department's regulations mirrored the federal self­bonding regulations, there would be very few coal companies which could meet the stringent federal requirements relative to financial soundness needed to qualify for self­bonding. Even in these cases, it would be unusual for a company to choose self­bonding over other forms of bonding. It seems rather pointless, therefore, to consider making any changes to these PA regulations.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.168 vs. 30 CFR 800.60

35 ­ Liability insurance.

PA's regulations do not provide for acceptance of a self­insurance policy. The federal regulations allow a permittee to satisfy its insurance obligations by showing that it meets applicable state self­insurance criteria.
Section 3.1(c) of PA SMCRA requires the liability insurance to be issued by an insurance company and does not allow self­insurance.

Recommendation

No change in regulation.
Unless PA SMCRA is amended to provide for self­insurance, any attempt to determine the cost to operators is impossible.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.171 vs. 30 CFR 800.40

36 ­ Bond release inspection.

The PA regulation is more stringent because it could allow inspection to be delayed for reasons other than weather which make it impossible to perform the inspection.
PA regulations recognize that factors other than weather may make it impossible to inspect a site.

Recommendation

Revise 25 Pa. Code 86.171(d) to limit the reasons for delaying the inspection to weather conditions.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.181­86.182 vs. 30 CFR 800.50

37 ­ Bond forfeiture.

(1) The federal program limits the amount of the bond forfeited to an amount necessary to complete reclamation. The PA program does not have such a provision.

(2) Federal regulations contain a procedure for notifying the permittee and the surety of an intent to forfeit bonds on a permit. PA regulations do not require this notice.

(3) Federal regulations allow bonds to be posted for incremental areas within the permit area, and allows forfeiture of only those bonds which apply to incremental areas with unabated violations. PA requires all bonds on the permit area to be forfeited.

(4) OSM's regulations mandate repayment of the amount of a forfeited bond which exceeds actual reclamation costs incurred. PA has no counterpart and keeps all forfeited bond money regardless of whether it is or isn't used to pay for the reclamation of the mine site.
The bonds posted in PA have been determined by law to be penal bonds. Therefore, the entire amount of the bond is subject to forfeiture due to the operator's inability or unwillingness to comply with the laws and regulations. Even then, forfeited bonds are often insufficient to reclaim a site. Furthermore, PA bonding does not address the treatment of post mining discharges. Nor is it based on the cost of reclamation whereas the federal regulation requires the bond amount to be based on the cost of reclamation.

Recommendation

No change to regulation unless PA SMCRA is revised and PA implements full cost bonding.

Current bond rates are supplemented by a nonrefundable reclamation fee that is used to augment any amounts forfeited so that reclamation can be completed.

Although the PA regulations do not contain a provision to notify the operator of PA's intent to forfeit the bond on an unreclaimed mine site, PA does have a procedure which requires notification of the operator and the surety or bank of PA's intent to forfeit the bond.

Recommendation

Revise PA regulations to require that operators and sureties be notified of the intent to forfeit.

The difference between federal and PA regulations on forfeiture is based on the fact that the permit scheme described in the federal regulations is different than that of PA. Section 4(d) of PA SMCRA and Section 315(B) of PA Clean Streams Law provide that a bond applies to the entire permit area. The federal regulation indicates that the bond may apply to the entire permit area unless it is specified that the bond applies only to the increment that is being sought.

Recommendation

Unless PA goes to full cost bonding, there should be no change to the regulations or statute.

As referenced above PA does not have full cost bonding. If there is any excess money, it is used to offset deficiencies on other forfeited sites. There is another section in this part of the federal regulations which has no PA counterpart. 800.50(d)(1) states that if the amount forfeited is insufficient to pay for the full cost of reclamation, the operator shall be liable for the remaining costs. The regulatory authority may recover from the operator all costs of reclamation in excess of the amount forfeited.

Recommendation

No change to the regulations or statute.
The cost is realized by operators who forfeit bonds in excess of the cost to complete reclamation and treat post mining discharges. An operator's premiums for surety bonds may be slightly higher because of the penal nature of the bond. Benefit is that the Commonwealth is more likely to have sufficient funds in the SMCR Fund to complete reclamation of forfeited sites.

Only those operators who forfeit would incur this cost which would equal the amount of bond over the cost of reclamation. The benefit is that the PA approach allows bond rates below the full cost of reclamation. In those cases where forfeited bonds exceed the cost of reclamation, the excess can be used on other underbonded forfeited sites.

Cost is incurred by operators who forfeit and would equal the amount of bond over the cost of reclamation. The benefit is that the Commonwealth can use the excess bond to reclaim other mine sites. Furthermore, this approach may reduce the need for using full cost bonding.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.93(e) vs. no federal counterpart

38 ­ Oil and gas well barriers.

PA regulation requires a 125 foot barrier around all oil and gas wells unless the well is sealed or the well owner consents to a lesser distance. Federal regulation contains no similar requirement.
PA Oil and Gas Act and regulations establish requirements for mining in the vicinity of oil and gas wells. Section 601.214 of the Oil and Gas Act, 58 P.S. 601.214. Section 214(a) forbids removal of any coal or cut any passageway within 150 feet of any well or approved well location until written approval has been granted. The section also states that a coal operator will not be required to leave a pillar in excess of 100 feet in radius unless it is established that unusual conditions exist that require a larger pillar. Finally, the 125 foot barrier was a part of PA pre­primacy mining regulation. It was first incorporated into PA mining regulation as Section 77.92(a)(7) in 1972.

Recommendation

Maintain existing PA regulation.
The benefits of maintaining 125 foot barrier for safety of oil and gas well and mining personnel outweigh the economic gains of coal which would be mined within the 125 foot barrier.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.97 vs. 30 CFR 816.22(b)

39 ­ Topsoil removal.

PA regulation does not allow "other materials" to be used as a topsoil substitute or supplement for topsoil while federal regulation does.
PA regulation is consistent with 4(a)(c) of PA SMCRA which requires segregating and conserving topsoil and if necessary suitable subsoil. Section 515(b)(5) and (b)(6) of federal SMCRA allow other strata to be used as a substitute or supplement for topsoil if shown to be more suitable for supporting vegetation. The regulatory definition of topsoil is the A horizon or layer of the soil profile. The A horizon includes organic matter which is very beneficial for vegetative establishment and growth. Research has identified the superior quality of the A horizon to underlying soil horizon: or geologic strata for establishing vegetation (i.e. Soil Reconstruction: Selecting Materials for Placement in Mine Reclamation, D.E. McCormack Soil Scientist USDA).

Recommendation

Maintain existing requirements for conserving and replacing topsoil or the A soil horizon in all cases.
The benefits of conserving and replacing existing topsoil would exceed costs of selectively handling overburden strata and amending the strata to establish a growing medium which has the productive capacity of existing topsoil.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.100(c) & (d), 88.90(c) & (d), 88.185(b) & (c), 88.290(c) & (d), 90.100(c) & (d) vs. 30 CFR 816.22(d)(4)

40 ­ Revegetation ­ plant nutrients and soil amendments.

PA regulation 87.100 contains requirements relating to soil tests, limestone grain size and calcium carbonate content. Federal regulation merely requires the use of nutrients and amendments where necessary to establish the vegetative cover.
PA regulations allow for the use of alternative materials to limestone (i.e. alkaline coal ash) for neutralizing soil acidity. Establishing requirements for neutralizing materials (i.e. calcium carbonate content) facilitates use of these alterative materials.

Recommendation

Maintain existing requirement for neutralizing materials.
Allowing for the use of alternative materials (i.e. coal ash) for neutralizing soil acidity for vegetative establishment is an economic benefit to the coal industry when compared to utilizing commercial liming materials. Such beneficial uses of coal ash also provide economic benefits to the power generating industry.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.102 vs. 40 CFR 434

41 ­ Effluent standards.

PA's regulations require a manganese limit on Group B (stormwater runoff) discharges, where EPA's regulations do not.
This requirement was part of PA's pre­primacy regulations and was carried over.

Recommendation

Revise PA regulation to be consistent with the federal requirements.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.127(a) vs. 30 CFR 816.64(a)(2)

42 ­ Night­time blasting.

OSM's regulations permit night­time blasting upon a showing by the operator that the public will be protected from adverse noise and other impacts. PA's regulations do not permit night­time blasting.
Night­time blasting is prohibited by PA coal mining regulations and 25 Pa. Code, Chapter 211, which applies to all explosive usage within the Commonwealth. Night­time blasting is prohibited for obvious safety and nuisance reasons. We do not feel this regulation provides any hindrance to industry's ability to mine coal.

Recommendation

No change to the regulations.
The cost or impact of this requirement may be slightly lower coal production. The benefit to both the operator and the Department is fewer complaints and safer conditions in the blast area.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.126(a) vs. 30 CFR 816.64(b)

43 ­ Blast schedule.

PA's regulation requires the operator to publish the blasting schedule at least 10 days, but no more than 20 days before beginning blasting. OSM requires publication at least 10 days, but not more than 30 days before beginning blasting.
PA originally felt that a 10­20 day timeframe is more to the advantage of the public. However, it is unlikely that the difference between 20 and 30 days places the public at a disadvantage.

Recommendation

Revise 86.126(a) to allow publication of the blasting schedule between 10 and 30 days before blasting begins.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.126(b) vs. 30 CFR 816.64(c)

44 ­ Blast schedule.

PA's regulations require greater detail in the content of a blasting schedule than the corresponding federal regulation.
Section 87.125(b) requires more detailed information on the blasting schedule and requires this information for smaller blast areas than OSM requires in 816.64(c). Additionally, the federal regulations indicate that they are requiring only the minimum amount of information.

Recommendation

No change to the regulation.
The additional cost to include this information in a blast plan is negligible. The benefit is the potential for fewer complaints to the operator and the Department. It provides the public with a more accurate picture of the planned blasting and thereby reduce citizen worry and the number of citizen complaints.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.127(f)(5) vs. 30 CFR 816.67(c)

45 ­ Fly rock.

PA's regulation dealing with fly rock is more stringent than federal regulation. PA regulation prohibits fly rock beyond the property line of property owned or leased by the operator. The federal regulation prohibits fly rock beyond the permit boundary.
Although PA regulation sets the limit for fly rock at the boundary of property owned or leased by the operator, enforcement of this requirement is typically based on the permit boundary. The PA program as implemented is equivalent to the federal language.

Recommendation

Revise 86.127(f)(5) to prohibit fly rock beyond the permit boundary.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.127(f) vs. 30 CFR 816.67(a)

46 ­ Safety controls.

PA's regulations at 87.127(f)(1), (2) and (3) are more stringent than OSM's, since there are no similar provisions in the federal regulations.
PA mandates specific safety controls for the public when blasting operations occur near highways, utility lines, schools and public buildings.

The federal regulations contain a general requirement to conduct blasting to prevent injury to persons and damage to public or private property outside the permit area.

Recommendation

No change to the regulations.
Coal mine operators see slightly higher costs from signs, notifications and barricading and guarding highways. Benefits include greater protection of public health, safety and property from fly rock and less likely disruption of utilities.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.131 vs. 30 CFR 816.71, 816.72, 816.73 and 816.74

47 ­ Excess spoil disposal.

(1) PA requires excess spoil disposal areas to be designed with a seismic safety factor of 1.1, but OSM has no such requirement.

(2) PA does not allow for any depressions on the completed fill area, but OSM allows small depressions for certain reasons.

(3) PA requires periphery drainage channels to be constructed in natural ground clay. OSM does not.

(4) OSM regulations address excess spoil disposal in "valley fills", "durable rock fills" and on "pre­existing benches", but PA's regulations contain no corresponding provisions.
PA's regulations were drafted in light of mining conditions in PA. Mining in PA generally does not generate such quantities of excess spoil to warrant regulations that are equivalent to the federal regulations. Section 4 of PA SMCRA requires reclamation to AOC unless the operator demonstrates and PA finds that the proposed site cannot be reclaimed by contouring.

Recommendation

Retain provisions of current PA regulations.
This requirement is consistent with the federal regulations, and, therefore, imposes no unnecessary
costs on applicants.

There are no costs associated with grading completed excess spoil fills to eliminate depressions. The benefits are reduced potential for pollutional discharges and the costs associated with their treatment.

The use of clay channels may involve additional costs associated with handling and compacting clay materials. Good natural clays are available in close proximity to most mine sites.

The benefits of clay channels are that they reduce the potential for pollutional discharges.

Disposal of excess spoil does not present a problem for most PA mines. Most sites can readily be reclaimed to approximate original contour as prescribed by PA law. The unavailability of certain disposal options listed in the federal regulations, therefore, imposes no real costs to operators.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.138, 89.65, 89.82 and 90.150 vs. 30 CFR 816.97

48 ­ Fish, wildlife and related environmental values.

PA regulation requires operators to locate and operate haul roads and access roads so as to prevent impacts to fish and wildlife while federal regulation requires avoiding or minimizing impacts.
PA regulation is more stringent as to the locating and operating of haul roads and access roads in requiring prevention of impacts to fish and wildlife instead of avoiding or minimizing impacts.

Recommendation

Change the PA regulations to be consistent with federal regulation.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.144(c), 88.118(c) vs. no federal counterpart

49 ­ Backfilling.

PA regulation contains specific design standards for terrace backfilling which are not in the federal regulation.
Federal regulation 816.102 had at one time contained requirements corresponding to 87.141(c)(1)­(4). They have since been removed.

Recommendation

Change the PA regulation to be consistent with federal regulation.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.144(f) and 88.118(f) vs. 30 CFR 816.102(j)

50 ­ Final grading.

PA regulation has no corresponding federal regulation as part of 816.102(j) specifying the manner in which final grading occurs.
PA regulation contains requirements specifying the manner in which final grading occurs. Federal regulation had at one time contained a corresponding requirement which has since been removed.

Recommendation

Change PA regulation to be consistent with federal regulation.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.145(1) & (3) vs. 30 CFR 816.41(f), 816.102(f)

51 ­ Acid­forming and toxic­forming materials.

PA regulation specifying the method for handling acid­forming materials in order to prevent the formation of AMD has no corresponding federal requirements.
The federal regulations formerly included requirements corresponding to PA regulation 87.145(1) and (3). The federal regulations now contain general provisions. Requirements similar to 87.145(1) were part of PA regulation 77.92(f)(3) prior to federal SMCRA.

In addition, Section 4 of the Clean Streams Law provides that one of the objectives of the law is to prevent further pollution of the waters of the Commonwealth this regulation aids in the achievement of that objective. Section 4(a)(1) of PA SMCRA prohibits the issuance of a permit unless the reclamation plan provides for a practicable method of avoiding AMD. These provisions assist in accomplishing this objective.

Recommendation

No change.
There are currently 2700 miles of Pennsylvania streams adversely affected by acid mine drainage (AMD). The total estimated annual cost of treating AMD from coal mining operations in the Commonwealth is between 32 and 46 million dollars. The benefits of requiring practicable methods of avoiding AMD more than offset the costs of treating AMD.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.174(g) vs. 30 CFR 816.107

52 ­ Backfilling ­ steep slopes.

PA regulation 87.174(g) has no corresponding federal regulation.
The federal regulation had at one time contained a requirement corresponding to 87.174(g).

Recommendation

Change 87.174 by deleting subsection (g).
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.146 and 89.87 vs. 30 CFR 816.95 and 817.95

53 ­ Regrading and stabilizing rills and gullies.

PA regulations require all rills and gullies to be filled and stabilized immediately while the federal regulation does not specify that they be stabilized immediately.
The federal regulation requires rills and gullies to be stabilized, but does not specify it be done immediately leaving the regulatory agency some discretion as to when they must be stabilized. This will reduce sedimentation problems.

Recommendation

Change 87.146 by removing the reference to immediately stabilize the rills and gullies.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.157 vs. 30 CFR 816.131

54 ­ Temporary cessation of operations.

PA's regulation imposes limits on the amount of time an operator may temporarily cease operations.
Section 87.157(b) sets 90 days as the length of temporary cessation, but they do allow a longer period up to 180 days. Furthermore, it is not uncommon for operators to seek and obtain successive 90 day temporary cessations. However, the Department has found that allowing surface mining operations to remain open and unreclaimed can increase the likelihood of post mining acid mine drainage discharges. The Department has also found that inactive mines are not maintained by the operator and become attractive nuisances dangerous to the health and welfare of the public. Inactive sites also become public eyesores.

Recommendation

No change to the regulations.
The cost to the operator is through loss of any coal in the pit and remaining coal reserves on the permit. The benefit is the reduced likelihood for a pollutional post mining discharge and reduced likelihood of the creation of attractive nuisances and their concurrent threat to public health and safety.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 87.159(b)(4), 88.133(b)(4), 88.221(b)(4), 88.334(b)(4), 89.88(b)(3) and 90.166(b)(4) vs. 30 CFR 816.133

55 ­ Post mining land uses.

PA regulation has no corresponding federal requirement to consider historic land use.
PA regulations require post mining land uses to be reviewed on the basis of the historic use of the land as well as the uses of the land immediately before mining in cases where the land use changed within 5 years of beginning mining. Federal regulation had at one time contained a similar requirement.

Recommendation

Change PA regulations by deleting this requirement. In addition, include a post mining land use category of unmanaged natural habitat.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.54 and 89.83 vs. 30 CFR 817.13, 817.14 and 817.15

56 ­ Preventing discharges from underground mines.

PA regulations are more stringent than the federal regulations in that they prohibit mine discharges that result from the flooding of a mine, and preclude the location of mine entries at elevations which may be below that of the final mine pool.
As discussed under Item 2, the PA Clean Streams Law prohibits all potential polluting discharges from mines without regard to their classification under the federal program. The PA regulation on entry locations is based on historic observations that the mine seals have proven ineffective in preventing discharges in PA.

Recommendation

Retain provisions of current PA regulation
See analysis under Item 2.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.63 vs. 30 CFR 817.89.

57 ­ Disposal of noncoal wastes.

PA regulations are more stringent than federal regulations in that they characterize all noncoal wastes as hazardous and require that these wastes be disposed of off­site.
Disposal of all solid wastes in PA is regulated pursuant to the PA Solid Waste Management Act and its implementing regulations. 25 Pa. Code 89.63 and other similar regulations in Chapters 87­90 are in the process of being revised to clarify that all noncoal wastes are not necessarily hazardous.

Recommendation

Proceed with regulatory revisions which clarify that not all noncoal wastes are not hazardous wastes.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.87 vs. 30 CFR 817.95

58 ­ Underground mining ­ regrading and stabilizing rills and gullies.
See response to No. 123.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.143 and 89.145 vs. 30 CFR 817.41 and 817.121

59 ­ Subsidence control regulations.

PA subsidence control regulations are more stringent than corresponding federal regulations.
See response to Item 71.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.143(a)(3) vs. no corresponding federal requirement

60 ­ Underground mining in areas where the cover is less than 100 feet.

PA regulations generally prohibit mining beneath structures where the cover is less than 100 feet.
PA regulation is based on historic observations of subsidence damage and published reports regarding the incidence of mine subsidence in the eastern coal fields. Due to geologic conditions in PA, mining at depths of less than 100 feet poses an increased risk of subsidence damage and, if unstable over time, often results in severe subsidence damage. PA regulation is necessary to prevent irreparable damage as required under Section 9.1 of the PA Bituminous Mine Subsidence and Land Conservation Act, and to comply with the federal regulation at 30 CFR 817.121(a) to maximize mine stability.

Recommendation

Retain the current PA regulation.
The PA regulation may render parts of a coal reserve inaccessible to underground mining. Some of this coal may, however, be accessed by surface mining methods.

This restriction benefits future property owners by providing a stable land surface on which to build. The majority of PA's abandoned mine subsidence problems occur in settings where the coal is less than 100 feet deep. In addition, the most severe property damage has been observed in these settings.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.143(b) vs. 30 CFR 817.121(a) and (d)

61 ­ Preventing subsidence damage to certain structures.

PA regulations require mine operators to prevent damage to certain structures which are not similarly protected under federal regulations. In addition, PA regulations require the prevention of "material damage".
The referenced PA regulations have been superseded by the Act 54 amendments to the PA Bituminous Mine Subsidence and Land Conservation Act. Act 54 imposed subsidence damage prevention standards similar to those in the federal regulations.

Recommendation

Revise the PA regulations to make them consistent with BMSLCA.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.144 vs. 30 CFR 817.122

62 ­ Notice of underground mining operations.

PA regulations require mine operators to notify owners of overlying structures by certified mail, return receipt required, and to submit a copy of the notice to PA. Federal regulations do not require the use of certified mail, return receipt requested, or the submission of copies to the regulatory authority.
PA regulations are based in part on Section 10 of the PA Bituminous Mine Subsidence and Land Conservation Act, which requires notices to be sent by registered or certified mail. Requirements regarding return receipts and the submission of notices to PA have been incorporated as a means of verifying compliance with notification requirements. The additional requirements in PA regulations are warranted based on past violations of Section 10 notification requirements.

Recommendation

Retain current PA requirement.
The costs associated with this requirement are making photocopies and mailing them to DEP. This is estimated to be less than one dollar per property owner.

One benefit is early detection of notifications which were missed. By alerting mine operators to these matters, DEP can help avoid situations that delay mining.

An added benefit is the trust the public gains in the knowledge that DEP is policing this matter.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.193 vs. 30 CFR 845.12

63 ­ Mandatory civil penalty.

The PA threshold for assessing a civil penalty is more stringent than the federal programs. The PA threshold is $1,000. The federal threshold is $1,100.
PA's threshold for assessing a civil penalty is $100 less than the federal threshold. However PA's possible reduction of a penalty amount for speed of compliance is $800 greater than the federal program. If an operator takes steps to achieve compliance as rapidly as possible after becoming aware of the violation, a reduction in points (federal program) or money (PA program) may be warranted. The federal program allows from 1 to 10 points in reduction ($2 to $200). The PA program allows a reduction of up to $1,000.

Recommendation

Revise the regulation to use the federal threshold.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.193 vs. 30 CFR 845.13

64 ­ Assessment of civil penalty.

PA imposes minimum mandatory civil penalty amounts for conducting mining activities in areas not covered by a permit. There are no federal counterparts.
PA regulations at 86.193(d), (e) and (f) impose mandatory minimum penalties for mining activities in areas where mining is limited or prohibited. At the time that this regulation was drafted and adopted, PA had a major problem with wildcat operators and operators mining without permits and off of their permitted areas or in areas where mining was prohibited. The mandatory nature of these penalties is a major deterrent to unauthorized mining.

Recommendation

No change to the regulation.
Only those operators who conduct unauthorized mining activities incur any costs. This reduces the creation of unreclaimed mine sites and associated environmental problems which would have to be reclaimed at public expense. One benefit is that unauthorized mining occurs far less frequently than when these regulations were put into effect. Another benefit is that virtually every mining activity in PA is covered by a permit and bond. In addition, permitted operations will not have to compete with wildcat operations which usually violate various other requirements.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.194 vs. 30 CFR 845.13

65 ­ Assessment of civil penalties.

PA's regulations allow for larger civil penalties to be assessed.

(1) 86.194(b)(1) allows PA to assess up to $10,000 for the seriousness of a violation. OSM's regulation set the maximum at $1,000.

(2) 86.194(b)(2) allows an assessment of up to $1500.00 for negligent conduct and $2,000 for willful conduct. Under OSM's regulations, the maximum assessment for negligence is $240.00 and for willful conduct it ranges from $260 to $500.

(3) 86.194(b)(4) includes a category for "costs to the Commonwealth" and 86.194(b)(5) includes a category for "savings to the violator". There is no federal equivalent.

(4) Under 86.194(b)(6), PA considers violations over the previous 2 years. The federal regulations consider violations for 1 year.
The General Assembly established the maximum amount of a civil penalty. Section 18.4 of PA SMCRA and Section 605 of CSL. PA's regulation allows for the assessment of the statutory maximum giving the Department the flexibility to assess lesser amounts depending on the seriousness of the violation.

Recommendation

No change to the regulation.

PA's regulation gives the Department greater flexibility in assessing a penalty commensurate with the violation. PA's penalty amount is more indicative of the degree of seriousness that PA places on "negligent" conduct and willful conduct.

Recommendation

No change to the regulation.

Section 18.4 of PA SMCRA requires the Department to consider, when determining the amount of the civil penalty: (1) the willfulness of the violation; (2) damage or injury to lands or waters of the Commonwealth or their uses; (3) cost of restoration; and (4) other relevant factors. The Department considers cost to the Commonwealth and savings to the violator to be relevant factors in establishing the impact of the violation.

Recommendation

No change to the regulation or statute.

PA's regulation is more stringent to the extent that it considers past violations for 2 years and OSM considers past violations for 1 year.

Recommendation

Revise the regulation to consider only violations over the previous year.
This regulation imposes no additional cost on an operator unless he engages in a violation so serious that the Department assesses a penalty in excess of $1,000. Serious violations may result in a civil penalty at the statutory maximum. However, serious violations have become relatively rare due in great part to this regulation. The flexibility to assess penalties larger than $1,000 provides incentive for mining operations to be conducted properly.

No additional cost is imposed unless an operator willfully or negligently violates the law. Compliance with environmental requirements has properly become an element to be considered in the day to day operation of a mine.

Civil penalty amounts are still bound by the statutory maximums. Considering these factors allows the penalty to be calculated to eliminate the profit incentive for violating the law. It also provides a mechanism to dissuade operators from shifting costs to the tax payers.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.194(c) vs. 30 CFR 845.15

66 ­ Capping failure to abate civil penalties and alternative enforcement.

OSM regulations contain a 30 day cap for calculation of a "Failure to Abate" Civil Penalty. PA's regulations do not contain such a provision.
PA regulations do not contain a cap for assessing the amount of a "failure to abate" civil penalty. However, these types of penalties are capped at 30 days in accordance with PA policy. Sections 605(b)(3) of the Clean Streams Law and 1396.18(d) of PA SMCRA require that PA assess a penalty for every day that the violation continues. Neither statute provides authority to limit the number of days for which an assessment must be made.

Recommendation

No change to the regulation.
This provision imposes no greater burden on an operator. The operator himself has chosen to incur $750 per day by failing to abate the violation within 30 days of the abatement date.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
No PA regulation vs. 30 CFR 845.16

67 ­ Alternate system for calculating civil penalties.

OSM has an alternate system for calculating civil penalties if the point system results in an unjust assessment. PA has no counterpoint.
Although PA has no counterpart regulations to OSM's regulations there really is no need for a PA counterpoint. The federal regulations allow for a waiver of the formula to calculate a civil penalty only if, after taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust. If this is the case, then OSM is to use the criteria set forth in 30 CFR 845.13(b). The method for penalty calculation outlined in 845.13(b) uses the same criteria that OSM uses to calculate all of its penalties except that the OSM must also document for the record the reason that the formula was waived and must give to the person to whom the notice or order was issued a written explanation of the basis for the assessment. PA's penalty assessment system uses the same categories as OSM uses to calculate civil penalties. These categories do not differ, even if OSM waives the formula pursuant to 845. 13(b). The PA system provides greater flexibility in the initial
assessment process than does the federal system.

Recommendation

No change to the regulations.
Sufficient flexibility and opportunity for review exists under the current regulations. The federal regulation would only place additional administrative burdens on the Department with little or no benefit to the operator.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.201 and 86.202 vs. 30 CFR 845.17­845.20

68 ­ Assessment procedures.

(1) OSM allows an operator to submit information to the regulatory authority within 15 days of receipt of a notice of violation or cessation order which is to be considered in calculating the penalty.

(2) OSM's regulations require that a proposed assessment and worksheet be served upon the operator within 30 days of the date of the notice of violation or order. PA's regulations do not provide for a proposed assessment.

(3) OSM regulations provide that statements made at a civil penalty conference cannot be used at a subsequent hearing.

(4) OSM regulations provide that the operator may contest the fact of the violation as well as the penalty amount in an appeal of the assessment. The PA regulation only allows this to occur if the operator has perfected an appeal of the violation.
PA has no explicit counterpart in its regulations.

Recommendation

Revise PA's regulations to allow an operator to submit information for consideration.

PA, by policy, serves a notice of proposed assessment on the person to whom the order was issued. The procedures are similar to those provided for by the federal program.

Recommendation

Revise PA's regulations to provide for proposed assessments.

There is no PA counterpart either in regulation or in policy.

Recommendation

Revise PA's regulations to the extent allowed by law to match the federal provision.

PA changed it's regulation concerning this procedure. It no longer allows the operator to contest the fact of the violation in an appeal of the penalty amount if the operator has not timely appealed the fact of the violation. This is consistent with PA law on administrative finality which provides that a PA decision that is not timely appealed can not be collaterally attached in a later proceeding. It is also consistent with the Environmental Hearing Board Act and the regulations adopted pursuant to that act.

OSM's approval of this regulation was challenged by the Pennsylvania Coal Association and was upheld by the U.S. Third Circuit Court of Appeals. The PA regulation provides the operator with the required due process­­notice and an opportunity to be heard, just like the federal regulation. However, it only provides one opportunity to appeal the fact of the violation.

Recommendation

Modify the regulation to be consistent with the federal regulation.*
In those instances where the penalty is assessed more than 30 days after the violation an operator which bases its decision on whether to appeal on the amount of the penalty would have to file 2 appeals to preserve the right to contest the facts of the violation and the amount of the penalty. This has rarely occurred. The benefit is having the law in the mining program consistent with other programs and state law. It also enables the Department to better preserve the facts for a defense if the Department timely knows an appeal has been filed.

* The Office of Chief Counsel is closely reviewing this to determine the appropriate changes considering the federal regulation, PA SMCRA, the Environmental Hearing Board Act, the EHB's regulations and the doctrine of administrative finality.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 86.195 vs. 30 CFR Part 846

69 ­ Individual civil penalties.

PA's individual civil penalty regulation is more stringent than the federal regulation.

(1) Federal regulations define the terms "knowingly," "willfully" and "violation, failure or refusal." PA regulations do not define these terms.

(2) The PA regulation allows an individual civil penalty for participating in a violation or when one's misconduct or intentional neglect causes or allows a violation. The federal regulations allow an individual civil penalty only when the violations were knowingly and willfully authorized, ordered or carried out.

(3) The maximum daily penalty under federal regulations is $5,000. The maximum under PA's program is $10,000. Also, the civil penalty under PA regulations can be greater than the penalty under federal regulations.

(4) Individuals do not have to post the amount of the assessed civil penalty to escrow to perfect an appeal under the federal regulations, but they do under PA regulations.

(5) Federal regulations provide for a stay and withdrawal of the individual civil penalty if the individual or corporate permittee and the regulatory authority agree to an abatement schedule and the violation is abated on time. PA's regulations do not contain corresponding provisions.
These terms are not used in PA's regulations dealing with individual civil penalties.

Recommendation

No change to PA's regulations.

PA's regulation is a codification of PA common law which applies to all corporate officers. Officers of coal mining corporations should be held to the same standard as others. Imposing personal liability on corporate officers occurs very rarely. The current language makes it a more effective tool in those rare circumstances it is used.

Recommendation

No change.

The maximum daily civil penalty is established by statute. See the explanation at issue Item 66.

Recommendation

No change to PA regulation.

PA SMCRA requires posting of the amount of the penalty to escrow for all civil penalties in order to perfect an appeal. The constitutionality of the PA statute and regulation has been upheld by the PA Supreme Court.

Recommendation

No change to the regulation.

PA regulations do not contain such a requirement. Currently this is accomplished by policy.

Recommendation

Revise the PA regulations on individual civil penalties to be consistent with the federal language dealing with the stay and withdrawal of individual civil penalties.
See discussion on part (2) of this
issue.

The only cost imposed would be on corporate officers who participate in a violation or whose conduct or intentional neglect causes or allows a violation. One benefit is that it encourages officers to act responsibly to avoid harming the public or the environment. Additionally, past experience has proven that without this provision it is difficult for the Department to address those limited situations where officers do not comply with the law and have structured the corporation so it has no assets. The existing regulation will facilitate the Department's actions to ensure compliance to protect the public and the environment.

See the cost/benefit analysis for Item 66.

There is no additional cost to the individual. The amount escrowed and interest earned on that amount are returned if the individual's appeal is upheld. The benefit is that this reduces the number of frivolous appeals filed in order to delay payment of the penalty.
Comparative Analysis Evaluation/Recommendation Cost/Benefit Analysis
25 Pa. Code 89.141(d)(2) vs. 30 CFR 784.20(b)(5) and 784.20(7)

70 ­ Subsidence Control Plan.

25 Pa. Code 89.141(d)(2) is more stringent than 30 CFR 784.20(b)(5) and 784.20(7).
PA's regulations require mine operators to take measures to reduce the likelihood of subsidence. The federal regulations exempt from this requirement mine operators who intend to use planned subsidence.

Recommendation

Revise PA's regulations to distinguish between those requirements to which all underground mine operators are subject and those requirements from which underground mine operators using full extraction techniques are exempt. In addition, revise this regulation to reflect and be consistent with the 1994 amendments to BMSLCA.