(a) A person who intends to extract coal
incidental to the extraction of other minerals shall do so under the provisions
of a noncoal surface mining permit issued under Chapter 77 (relating to noncoal
mining) and subject to the conditions described in this section. Incidental
coal extraction which has been approved by the Department subject to the
conditions in this section shall be exempt from the other requirements of this
chapter and the requirements of Chapter 87 and Chapter 88, Subchapters
A-C.
(b) Subject to Department
approval, for purposes of determining the beginning of the cumulative
measurement period, the operator shall select and consistently use one of the
following:
(1) For mining areas where coal or
other minerals were extracted prior to August 3, 1977, the date extraction of
coal or other minerals commenced at that mining area or August 3, 1977,
whichever is earlier.
(2) For
mining areas where extraction of coal or other minerals commenced on or after
August 3, 1977, the date extraction of coal or other minerals commenced at that
mining area.
(c) A person
who plans to commence extraction of coal incidental to noncoal surface mining
shall file with the Department a complete request for exemption from the
requirements identified in subsection (a). The request shall be submitted as
part of an application for a permit, or for a permit revision, to conduct
noncoal surface mining activities.
(d) A person who has commenced incidental
extraction of coal under a noncoal mining activity permit prior to December 16,
1995, may continue the extraction until February 14, 1996, after which no
further incidental coal extraction may occur unless that person files an
administratively complete request for exemption as described in subsection (g).
Incidental coal extraction may then continue until the Department has made its
final decision and written determination on the request for
exemption.
(e) Sections
77.121 and
77.122 (relating to public notices
of filing of permit applications; and opportunity for submission of written
comments or objections on the permit application) shall be followed by the
applicant and by the Department.
(f) Information relative to incidental coal
extraction will be made available to the public as follows:
(1) Except as provided in paragraph (2), the
information submitted to the Department under this section shall immediately be
made available for public inspection and copying at the local offices of the
Department having jurisdiction over the mining operations claiming exemption
until at least 3 years after expiration of the period during which the subject
mining area is active.
(2) The
Department may keep information submitted to the Department under this section
confidential if the person submitting it requests in writing, at the time of
submission, that it be kept confidential and the information concerns trade
secrets or is privileged commercial or financial information of the persons
intending to conduct operations under this section.
(3) Information requested to be held as
confidential under paragraph (2) will not be made publicly available until
after notice and opportunity to be heard is afforded persons both seeking and
opposing disclosure of the information.
(g) A request for exemption shall include at
a minimum:
(1) The name and address of the
applicant.
(2) A list of the
minerals sought to be extracted.
(3) Estimates of annual production of coal
and the other minerals within each mining area over the anticipated life of the
mining operation.
(4) Estimated
annual revenues to be derived from bona fide sales of coal and other minerals
to be extracted within the mining area.
(5) The estimated annual fair market values
at the time of projected use of the coal and other minerals to be extracted
from the mining area, where coal or the other minerals are to be used rather
than sold.
(6) The basis for annual
production, revenue and fair market value estimates.
(7) A description, including county,
municipality and boundaries of the land, of sufficient certainty that the
mining areas may be located and distinguished from other mining
areas.
(8) An estimate to the
nearest acre of the number of acres that will compose the mining area over the
anticipated life of the mining operation.
(9) Evidence of publication, in a newspaper
of general circulation in the county of the mining area, of a public notice
that a request for exemption has been filed with the Department. The public
notice shall identify the persons claiming the exemption and contain a
description of the proposed operation and its locality that is sufficient for
interested persons to identify the operation.
(10) Representative stratigraphic
cross-sections based on test borings or other information identifying and
showing the relative position, approximate thickness and density of the coal
and each other mineral to be extracted for commercial use or sale and the
relative position and thickness of material, not classified as other minerals,
that will also be extracted during the conduct of mining activities.
(11) A map to a scale of not less then
1:25,000 which clearly identifies the mining area.
(12) A general description of mining and
mineral processing activities for the mining area.
(13) A summary of sales commitments and
agreements for future delivery, if any, which the applicant has received for
other minerals to be extracted from the mining area, or a description of
potential markets for the minerals.
(14) A description specifying the use, if the
other minerals are to be commercially used by the applicant.
(15) For permitted noncoal surface mining
activities which have been in operation prior to requesting an exemption, the
following additional information:
(i) Relevant
documents the operator has received from the Department documenting its
exemption from the act.
(ii) The
cumulative production of the coal and other minerals from the mining
area.
(iii) Estimated tonnages of
stockpiled coal and other minerals.
(16) Other information pertinent to the
qualification of the operation as exempt.
(h) The Department will notify the applicant
if the request for exemption is incomplete and may at any time require
submittal of additional information. The Department will approve a request for
exemption only if the following are satisfied:
(1) The cumulative production of coal
extracted from the mining area determined annually, as described in subsection
(j)(4), does not exceed 16 2/3% of the total cumulative production of coal and
other minerals removed during the period for purposes of bona fide sale or
reasonable commercial use.
(2) Coal
is produced from a geological stratum lying above the deepest stratum from
which other minerals are extracted for purposes of bona fide sale or reasonable
commercial use.
(3) The cumulative
revenue derived from the coal extracted from the mining area determined
annually does not exceed 50% of the total cumulative revenue derived from the
coal and other minerals removed for purposes of bona fide sale or reasonable
commercial use. If the coal extracted or the minerals removed are used by the
operator or transferred to a related entity for use instead of being sold in a
bona fide sale, the fair market value of the coal or other minerals shall be
calculated at the time of use or transfer and shall be considered rather than
revenue.
(4) Each other mineral
upon which an exemption under this section is based shall be a commercially
valuable mineral for which a market exists or which is mined in bona fide
anticipation that a market will exist for the mineral in the reasonably
foreseeable future, not to exceed 12 months from the end of the current period
for which cumulative production is calculated, as evidenced by a legally
binding agreement or other commitment for the future sale of other minerals, or
other evidence that will establish to the Department's satisfaction that a bona
fide market exists for the other minerals.
(5) If either coal or other minerals are
transferred or sold by the operator to a related entity for its use or sale,
the transaction shall be made for legitimate business purposes.
(i) Exemption determination will
be as follows:
(1) Within 90 days after filing
of an administratively complete application, the Department will make a written
determination whether, and under what conditions, an exemption can be granted
under this section, and will notify the applicant and persons submitting
comments on the application of the determination and the basis for the
determination.
(2) The
determination of exemption shall be based upon information contained in the
application and other information available to the Department at that
time.
(3) A person who is adversely
affected by the determination may file an appeal as provided for under Chapter
1021 (relating to Environmental Hearing Board).
(j) A person whose request for exemption has
been approved by the Department shall:
(1)
Maintain onsite or at other locations available to authorized representatives
of both the Department and the United States Department of the Interior
information necessary to verify the exemption including, but not limited to,
commercial use and sales information, extraction tonnages, and a copy of the
exemption application and exemption approved by the Department.
(2) Notify the Department upon the completion
of the mining operation or permanent cessation of coal extraction
activities.
(3) Conduct operations
in accordance with the approved request for exemption.
(4) File a written annual report beginning no
later than 30 days after the end of the calendar quarter during which coal
extraction commenced and each succeeding year no later than the anniversary of
the initial report, for each mining area covered by an exemption. The report
shall cover the preceding 12-month cumulative measurement period and shall
contain the following information:
(i) Annual
production of coal and other minerals and annual revenue derived from coal and
other minerals during the preceding 12-month period.
(ii) The cumulative production of coal and
other minerals and the cumulative revenue derived from coal and other minerals.
(iii) The number of tons of
extracted coal sold in bona fide sales and total revenue derived from the
sales.
(iv) The number of tons of
coal extracted and used or transferred by the operator or related entity and
the estimated total fair market value of the coal.
(v) The number of tons of coal
stockpiled.
(vi) The number of tons
of other commercially valuable minerals extracted and sold in bona fide sales
and total revenue derived from the sales.
(vii) The number of tons of other
commercially valuable minerals extracted and used or transferred by the
operator or related entity and the estimated total fair market value of the
minerals.
(viii) The number of tons
of other commercially valuable minerals removed and stockpiled by the
operator.
(k)
Stockpiling of coal and other minerals for calculating and reporting of
cumulative production will be considered as follows:
(1) Coal extracted and stockpiled may be
excluded from the calculation of cumulative production until the time of its
sale, transfer to a related entity or use under one of the following:
(i) Up to an amount equaling a 12-month
supply of the coal required for future sale, transfer or use as calculated
based upon the average annual sales, transfer and use from the mining area over
the 2 preceding years.
(ii) Up to
an amount that would represent a 12-month supply of the coal required for
future sales, transfer or use as calculated based on the average amount of coal
sold, transferred or used each month for a mining area where coal has been
extracted for a period of less than 2 years.
(2) The Department will disallow all or part
of an operator's tonnages of stockpiled other minerals for purposes of meeting
the requirements of this section if the operator fails to maintain adequate and
verifiable records of the mining area of origin, the disposition of stockpiles
or if the disposition of the stockpiles indicates the lack of commercial use or
market for the minerals.
(3) The
Department may allow an operator to utilize tonnages of stockpiled other
minerals for purposes of meeting the requirements of this section only if the
following apply:
(i) The stockpiling is
necessary to meet market conditions or is consistent with generally accepted
industry practices.
(ii) Except as
provided in paragraph (4), the stockpiled other minerals do not exceed a
12-month supply of the mineral required for future sales as approved by the
Department on the basis of the exemption application.
(4) The Department may allow an operator to
utilize tonnages of stockpiled other minerals beyond the 12-month limit
established in paragraph (3) if the operator can demonstrate to the
Department's satisfaction that the additional tonnage is required to meet
future business obligations of the operator, such as may be demonstrated by a
legally binding agreement or other commitment or legitimate evidence of the
need for future delivery of the minerals.
(5) The Department may periodically revise
the other mineral stockpile tonnage limits in accordance with the criteria
established by paragraphs (3) and (4) based on additional information available
to the Department.
(l)
The Department will conduct an annual compliance review of the mining area,
utilizing the annual report submitted under subsection (j)(4), an onsite
inspection and other information available to the Department.
(m) If the Department has reason to believe
that a specific mining area was not exempt under this section at the end of the
previous reporting period, is not exempt or will be unable to satisfy the
exemption criteria at the end of the current reporting period, the Department
will notify the operator that the exemption may be revoked and the reasons
therefore. The exemption will be revoked unless the operator demonstrates to
the Department within 30 days that the mining area in question should continue
to be exempt. The operator and interested parties will be immediately notified
of the revocation or of the decision not to revoke the exemption.
(n) Upon revocation of an exemption or denial
of an exemption application, an operator shall stop conducting surface coal
mining operations until a permit is obtained and shall comply with the
reclamation standards of the Department with regard to conditions, areas and
activities existing at the time of revocation or denial.
(o) An operator who does not conduct
activities in accordance with the terms of an approved exemption and knows or
should know the activities are not in accordance with the approved exemption
shall be subject to direct enforcement action for violations of the
Department's regulations which occur during the period of the
activities.