Sample Letter/Comments on Chapter 86 Mining Regulations

22 February 1999

David C. Hogeman
PADEP Bureau of Mining and Reclamation
Rachel Carson State Office Building
400 Market Street, 5th Floor
Harrisburg, PA 17101-2301

Re: Comments on Draft Final Chapter 86 Mining Regulations

Dear Mr. Hogeman:

This letter is to provide comments on the Draft Final Rulemaking for Surface and Underground Mining (25 PA Code, Chapter 86) as published in the Pennsylvania Bulletin on 30 January 1999 (Vol. 29, No. 5, p. 548).

Overall, the proposed revisions will weaken protections of the public and the environment, and for that reason should not be adopted as proposed.

(A) The Regulatory Basics Initiative, which is the basis of the proposed changes, has as its focus "easing the regulatory burden". This should not be equated with "eliminating necessary regulations". Poorly defined regulations, inconsistent application of the regulations by DEP, inadequate enforcement -- these are problems that should be corrected. The environmental protection requirements can be made less ambiguous without making them less effective. If the regulations were clearly defined and consistently applied, that would ease the burden on the regulated public. The goal should be to address the problems that evoked the regulations in the first place, not to eliminate the regulations themselves. For the Department of Environmental Protection to weaken environmental protection requirements in order to make it easier for mines to open and operate is simply irresponsible.

(B) A questionable assumption built into the Regulatory Basics Initiative is that federal standards and protections are acceptable, or even adequate. In the case of mining, the responsibility for administering the regulatory program has been delegated to Pennsylvania, and along with it the responsibility for protection of our natural resources. The federal SMCRA program was meant to provide a minimum baseline level of environmental protection. The original intent was that states receiving primacy would adapt the federal standards to their own local needs and conditions, primarily by making them more stringent. Instead, interstate competition and other economic considerations have fueled a "race to the bottom" in terms of preservi ng environmental quality. Efforts to reduce federal oversight are further weakening the standards, and DEP's apparent willingness to follow suit is discouraging. The people of the Commonwealth want and expect DEP to promote and protect their rights to clean air and water in accordance with Article 1, Section 27 of the Pennsylvania Constitution. They do not aspire to have the worst environmental quality allowed by federal law.

(C) 86.1. Definitions: Administratively complete application: The existing definition of "Complete application" is better and should not be changed. The proposed change reduces environmental protections in that an application need only "address" each requirement, instead of needing to "demonstrate compliance with applicable statutes and regulations" as under the existing definition. More information and more thorough planning before a mine is opened, not less, are needed to ensure environmental protection. If any change is to be made in this regard, the application forms themselves should be changed to more closely parallel the prescribed regulations so that applicants can clearly understand what the requirements are and what information should be presented in order to comply.

(D) 86.1. Definitions: Valid existing rights: The existing definition should be retained. It can be difficult enough to understand these regulations without being forced to search for the referenced definition in the Code of Federal Regulations. Furthermore, the federal definition of VER is convoluted, is subject to legal interpretation, has been changed over the years, and still is not firmly resolved. The current definition at 86.1 is relatively clear and should not be changed. If any change is to be made, it should be done in clear language at 86.1 and not by reference to a federal regulation.

(E) Subchapter D. 86.101. Definitions: Fragile lands: The word "significantly" should not be added. The proposed addition of this qualification will weaken environmental protections currently in place. How would "significantly" be defined, and by whom? Any damage to valuable or critical habitats may be significant. It would be a conflict of interest to allow an applicant to decide what level of damage, if any, is not significant. The DEP should make that determination, and only after all of the relevant information has been assembled and reviewed.

The last part of the existing definition, beginning with "and buffer zones adjacent to the boundaries of areas where surface mining operations are prohibited ... ", should be retained. It is unclear why this language is proposed for deletion. If it is removed, it will significantly reduce environmental protections. The purpose of buffer zones is to protect the adjacent area, so by their very nature these zones are critical, and thus should be retained in this definition.

(F) Subchapter D. 86.101. Definitions: Public park: The existing sentence defining nonprofit organizations as local agencies in this circumstance should not be deleted. In those instances where a nonprofit organization has designated lands for public recreational use, it is entirely appropriate that those lands should be treated as public parks. It is the park's public use, not its ownership, that is the significant factor. For the same reasons, the word "primarily" should not be added in an apparent attempt to distinguish some public recreational uses from others; all such uses should be fully and equally protected.

(G) Subchapter D. 86.101. Definitions: Surface mining operations: The last part of the definition ("and activities involved in or related to underground coal mining which are conducted on the surface of the land, produce changes in the land surface, or disturbs the surface, air or water resources of the area") should not be deleted. To delete this section of the definition would significantly weaken existing environmental protections. Despite its title, the federal SMCRA has always regulated both surface coal mining and the surface effects of underground coal mining. Thus it is appropriate to maintain this section in the definition. Furthermore, no comparable language is proposed to replace it in the underground mine regulations, and so this would become an unregulated class of activities.

(H) 86.102.(3). Areas where mining is prohibited or limited: The phrase "on or eligible for inclusion" should be retained. To delete this phrase would significantly weaken existing protections of recognized historic resources. The term "eligible for inclusion" refers to specific resources that have been approved by the SHPO for listing on a State Register and/or have been formally nominated for listing on the National Register. In accordance with federal requirements under Section 106 of the National Historic Preservation Act, both listed and eligible resources must be protected in certain situations. The proposed deletion of the above phrase is an unacceptable reduction of current protections and should not be adopted.

(I) 86.102.(9).ii and iii. The proposed changes reduce the protections of individuals whose dwellings are within 300 feet of proposed operations and thus should not be adopted. The proposed requirements lessen the burden on the mine applicant to gain the permission of existing landowners by expanding what is considered to be a valid waiver to include such things as a "lease, deed, or other conveyance" and the "constructive knowledge" of future owners. The existing language is adequate and should not be changed.

(J) 86.103.e. Procedures. The proposed change from "may" to "will" reduces the protections currently afforded to public parks and National Register places, and thus should not be adopted. If proposed mining operations are adjacent to, or upstream from, a public park or National Register site, there is a good likelihood that adverse effects will result. If there is any doubt, the regulations should take the cautious approach. In every such instance, therefore, the applicant rightfully should be required to transmit a copy of the application to the appropriate agency and solicit their comments. It would be a conflict of interest to allow an applicant to decide whether the mining operations will adversely affect these resources. The agency with jurisdiction should make that determination, and only after all of the relevant information about the proposed mining operation has been assembled and reviewed. The proposed change should not be adopted because it will weaken the exist ing protections of public parks and historic resources.

The proposed change in wording from "public park" to "publicly owned park" should not be made. As stated above in Comment F, ownership of a park is irrelevant. The important consideration in protecting the public's rights from adverse effects due to mining is whether the park is designated for public use, not who owns it. The existing language should remain unaltered.

(K) 86.103.e(2). Procedures. Two qualifiers are proposed to be added. The first (i), to allow a 30-day extension, may be appropriate. The second (ii), to deem a lack of response an approval, is unjust and should not be adopted. A mine application is a technically complex set of documents which can be difficult even for mine engineers to process and understand. Federal, state, or local agencies with jurisdiction over parks may not have the staff or expertise readily available to review a mine application and make a well informed determination about the potential extent of impacts in a 30- or 60-day timeframe. The coordination with park representatives is an appropriate step in the review process, and it should not be short-circuited. The original 30-day comment period should be extended to 90 or 120 days. The lack of a response should not be deemed an approval in any case.

(L) 86.121. Areas designated unsuitable for mining: The proposed changes would appear to simply reformat the existing requirements, but in fact they weaken existing protections and thus should not be adopted. The following two statements should be retained in the regulations: "In considering the permit applications in designated areas, the Department will impose terms and conditions to preserve and protect the applicable values and uses of the area.", and "No permits for surface mining will be issued in areas designated unsuitable under this chapter.". Without those statements, the current protections afforded by the regulations will be lessened unnecessarily.

(M) 86.123.(5). Procedures: petitions. The sentence beginning "A person having an interest which is or may be adversely affected must demonstrate an "injury in fact" ..." is an outrage and should not be added to the regulations. This sentence would shift the burden of proof onto the injured party, which is entirely inappropriate. If anyone is to be required to make a demonstration, it should be the mine applicant, not the victims of mining. Certainly the petitioner should provide as much information as possible to support his/her case, but the applicant should be required to demonstrate that the proposed mine operations will not adversely affect a petitioner's interest and to identify actions that will be taken to prevent or mitgate any potential adverse effects. The proposed sentence should not be adopted.

(N) 86.124.(a).2. Procedures: initial processing, etc. The proposed new sentence "A frivolous petition is one in which the allegations of harm lack serious merit." is unnecessary and should not be adopted. The commonly accepted meaning of the word "frivolous" as used in the existing regulations does not need to be clarified by the proposed sentence. Furthermore, who would decide up front whether the allegations "lack serious merit"? This is what the petition process is set up to do: to review proposals and determine whether a designation of unsuitability is warranted.

(O) 86.124.(c). Procedures: initial processing, etc. and 86.125. Procedures: hearing requirements. The forum for the hearing should not be changed from the EQB to the DEP as proposed. It is appropriate that the more disinterested EQB forum be used to hear the petitions. This proposed change in forum should not be adopted.

(P) 86.124.(f). Procedures: initial processing, etc. It is appropriate to impose a deadline on the preparation of a recommendation on a petition. The 12-month timeframe following receipt of a complete petition should be adequate. However, until the petition has been deemed to be administratively complete, a milestone that should be made clear to all parties involved, the clock should not begin.

(Q) 86.129.(a) and (b). Coal exploration. The change from prohibiting coal exploration on areas designated unsuitable for mining to allowing it should not be made. This is a major reversal in the regulation and it is entirely inappropriate. It may be reasonable to allow coal exploration on lands for which a petition has been filed and is pending, but once an area has been formally designated as unsuitable, no mining or coal exploration should be allowed. The proposed change should not be adopted.

In conclusion, the proposed revisions to Chapter 86 clearly were not made with the interests of the public and the protection of the environment in mind. The proposed changes undoubtedly will reduce the burden on the mine applicant, but at the expense of the environment and the general public. The people of the Commonwealth want and expect DEP to promote and protect their rights to clean land, air and water. The changes proposed for Chapter 86 are contrary to the goals of environmental protection and, therefore, should not be adopted.

Sincerely,

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