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PROPOSED RULEMAKINGS

ENVIRONMENTAL
QUALITY BOARD

[25 PA. CODE CH. 77]

Noncoal Mining Fees

[40 Pa.B. 4963]
[Saturday, August 28, 2010]

 The Environmental Quality Board (Board) proposes to amend Chapter 77 (relating to noncoal mining) to read as set forth in Annex A. This proposed rulemaking addresses the fees paid by noncoal mine operators.

 This proposed rulemaking was adopted by the Board at its meeting of June 15, 2010.

A. Effective Date

 This proposed rulemaking will go into effect upon final-form publication in the Pennsylvania Bulletin.

B. Contact Persons

 For further information, contact Tom Callaghan, Director, Bureau of Mining and Reclamation, P. O. Box 8461, Rachel Carson State Office Building, Harrisburg, PA 17105-8461, (717) 783-1659; or Richard S. Morrison, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available on the Department of Environmental Protection's (Department) web site at www.depweb.state.pa.us.

C. Statutory Authority

 The amendments are proposed under sections 7(a) and 11(a) of the Noncoal Surface Mining Conservation and Reclamation Act (act) (52 P. S. §§ 3307(a) and 3311(a)) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).

D. Background and Purpose

 The purpose of this proposed rulemaking is to establish fees as authorized by the act. Section 7(a) of the act states: ''The department is authorized to charge and collect from persons a reasonable filing fee, which shall not exceed the cost of reviewing, administering and enforcing the permit.'' The act thus authorizes the Department to collect fees from noncoal mining permit applicants and permittees in an amount sufficient to cover the Department's costs of administering the noncoal mining regulatory program, so long as the amount of fees collected does not exceed those costs. The Department calculated its costs of administering the noncoal mining program and will establish fees through this proposed rulemaking sufficient to cover most of its costs.

 The proposed rulemaking implements the statutory authorization of the act to collect a reasonable filing fee through two kinds of fees—the permit application fee and the administrative fee. The permit application fee is intended to cover only the Department's cost to review noncoal mining permit applications. The permit fees have been set according to the type of permit application submitted; the amounts of these fees are based on the number of hours typically required to review a specific type of permit application. A large noncoal surface mining permit where mining will take place below the water table is substantially more complex and requires significantly more review time than a small noncoal surface mining permit. The amount of the respective permit fees reflects the average review time for each type of permitting action.

 The annual administrative fee is intended to cover the Department's cost of administering the permit. These include, among other things, the cost of performing inspections of noncoal mining operations, compliance assistance and other compliance related activities, as well as tracking of required reporting and monitoring by permittees. As with the permit fees, the annual administrative fees have been set based on workload analyses. A large surface mining permit with blasting activity necessitates substantially more administrative activity by the Department; the annual administrative fee reflects the differences between types of operations based on the Department's respective administrative workload.

 The assessment of the two kinds of fees is necessary to fairly represent the cost to the Commonwealth for reviewing and administering a noncoal mining permit. This proposed rulemaking has become necessary in large part due to recent funding cuts. General appropriation funds to support the Department's regulatory/permitting programs were significantly reduced in Fiscal Year 2009-10 so it has become necessary to pay for the noncoal mining program through collection of fees paid by the regulated industry. The cost of implementing this program is $2.5 million per year.

Permit Application Fee

 The permit application fee amounts were calculated based on a workload analysis that the Department uses to manage the work force. The workload analysis assigns a certain number of hours for the review time for each type of application. Other factors, including the wage rate for the employee classification that reviews the application, benefits and overhead are included in the fee calculation. The result of this calculation was then rounded off.

 Permit applications vary in their complexity based on a number of factors. The primary factor relates to hydrologic impacts. Applications that propose to mine below the water table take more time to review. Therefore, the application fee for these permits is higher. Similarly, if blasting is proposed, then the blasting inspector is involved in the review of the blast plan for the application. Therefore, a fee is being proposed for blast plans.

Annual Administration Fee

 The annual administration of a noncoal mining permit is accomplished through routine inspections to assure that the mining activities are in compliance with the permit requirements. The Department established inspection frequencies based upon the type of permit and the status of the activity.

 There are two types of permits—small and large. Small permits authorize up to 10,000 tons per year in production. Large permits are needed for production that exceeds 10,000 tons per year. The inspection frequency for large permits is four per year. For small permits, the frequency is two per year.

 For large permits that authorize blasting, one inspection per year by the blasting inspector is needed. This results in a higher annual administrative fee amount for the large noncoal permits where blasting is authorized.

 There is not an advisory board for the noncoal mining program. However, the Department has engaged in extensive outreach with the regulated community. Feedback from the industry was considered in the drafting of this proposed rulemaking.

E. Summary of Regulatory Requirements

 The following sections are included in this proposed rulemaking:

§ 77.1. Definitions

 This section is being amended to add definitions of ''annual administration fee,'' ''large noncoal permit,'' ''major permit revision,'' ''minor permit revision,'' ''permit application fee,'' ''permit status'' and ''small noncoal permit.'' These definitions are needed for clarity in implementing the fee schedules.

§ 77.51. License requirement

 Subsection (e) is being amended to require an operator to pay fees to be eligible for a renewal of a mining license.

§ 77.106. Fees

 This section is being renamed from ''permit fees'' to ''fees'' and amended to include fee schedules for the permit application fees and annual administration fees. This section also specifies the intended use of the funds collected from the fees to support the Department's costs of reviewing applications and administering and enforcing permits.

§ 77.126. Criteria for permit approval or denial

 Subsection (c) is being added to include the requirement that an applicant pay all fees before a permit application may be approved by the Department.

F. Benefits, Costs and Compliance

Benefits

 The money generated by these fees will enhance environmental protection by assuring that the Department has the funds needed to review permit applications to prevent problems from occurring and administer the permits to assure compliance.

Compliance costs

 The proposed rulemaking will impose increased compliance costs on the regulated community. There are about 1,500 noncoal mining permit holders in this Commonwealth. It is expected that the fees will cost the industry $2.5 million per year.

Compliance assistance plan

 The Department will revise forms used by the industry when the fees are finalized.

G. Pollution Prevention

 The proposed rulemaking will not modify the pollution prevention approach by the regulated community and maintains the multimedia pollution prevention approach of existing requirements in Chapter 77.

H. Sunset Review

 These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

I. Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 18, 2010, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Senate and House Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.

J. Public Comments

Written comments. Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board on or before September 27, 2010. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by the Board on or before September 27, 2010. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulation will be considered.

Electronic comments. Comments may be submitted electronically to the Board at RegComments@state.pa.us and must also be received by the Board on or before September 27, 2010. A subject heading of the proposed rulemaking and a return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.

JOHN HANGER, 
Chairperson

Fiscal Note:  7-460. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARTMENT OF
ENVIRONMENTAL PROTECTION

Subpart C. PROTECTION OF
NATURAL RESOURCES

ARTICLE I. LAND RESOURCES

CHAPTER 77. NONCOAL MINING

Subchapter A. GENERAL PROVISIONS

§ 77.1. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

*  *  *  *  *

Annual administration fee—A nonrefundable filing fee assessed on an annual basis for the cost to the Department of inspecting a permitted activity or facility in order to administer the permit.

*  *  *  *  *

Large noncoal permit—A mining permit that authorizes the extraction of greater than 10,000 tons per year of noncoal materials

Major permit revision—A revision to a permit that requires public notice.

*  *  *  *  *

Minor permit revision—A revision to a permit that does not require public notice.

*  *  *  *  *

Permit application fee—A nonrefundable filing fee due at the time of submission of an application. The permit application fee is required for an application to be considered complete.

*  *  *  *  *

Permit status—An indicator of the level of progress of mining activity at a permitted facility. Permit statuses are as follows:

(i) Not started. Mine sites where the mining permit has been issued, but mining activities have not begun.

(ii) Active. Mine sites that do not qualify for inactive status, not started status or released status.

(iii) Inactive. Mine sites where mineral extraction activity has been completed but final bond release has not been completed.

(iv) Released. Mine sites where the final bond release has been completed.

*  *  *  *  *

Small noncoal permit—A mining permit that authorizes the extraction of up to 10,000 tons of noncoal minerals per year.

*  *  *  *  *

Subchapter B. SURFACE
MINING OPERATOR'S LICENSE

§ 77.51. License requirement.

*  *  *  *  *

 (e) Refusal to issue or renew license. The Department will not issue a noncoal surface mining operator's license or renew or amend a license if it finds, after investigation and an opportunity for informal hearing, that a person, partner, associate, officer, parent corporation or subsidiary corporation has been subject to a bond forfeiture under the act and environmental acts or has failed to comply with an adjudicated proceeding, cessation order, consent order and agreement or decree under the act and environmental acts. The Department will not renew a license for an operator who uses the provisions for payment in lieu of bond unless the operator submits his annual payment with the license renewal application. The Department will not renew a noncoal mining operator's license for an applicant who has not made full payment of the annual administration fee required under § 77.106(f) (relating to fees). A person who opposes the Department's decision on issuance or renewal of a license has the burden of proof.

*  *  *  *  *

Subchapter C. PERMITS AND
PERMIT APPLICATIONS

GENERAL

§ 77.106. [Permit fees] Fees.

[If required, a permit application for noncoal mining activities shall be accompanied by a check, payable to the ''Commonwealth of Pennsylvania'' in the amount set forth by the Department. The Department may require other fees set by the act, the environmental acts, this title or the Secretary.]

(a) A permit application for noncoal mining activities shall be accompanied by a nonrefundable payment for the permit application fee payable to the ''Commonwealth of Pennsylvania.'' The applicable permit application fee amount is specified in subsection (e). For purposes of this subsection, permit applications include all of the applications listed in subsection (e).

(b) The Department will assess an annual administration fee for each permitted activity and facility. For licensed mine operators, this annual administration fee will be assessed annually, will be collected as part of the mine operator's license renewal application and will include the appropriate annual administration fee for each of the licensee's permitted facilities. If the permittee is not required to maintain a mining license, a notice of the annual administration fee will be sent to the permittee for all of the permittee's permitted facilities and the fee must be paid within 30 days of receipt of the notice. The applicable fee amounts are specified in subsection (f).

(c) Fees collected under this section and all enforcement cost recovery funds will be deposited in the Noncoal Surface Mining Conservation and Reclamation Fund. The fees collected under this section will be used by the Department for the purposes specified by the act.

(d) At least every 3 years, the Department will recommend regulatory changes to the fees in this section to the EQB to address any disparity between the program income generated by the fees and program costs. The regulatory amendment will be based upon an evaluation of the program fees income and the Department's costs of administering the program.

(e) The permit application fee schedule is as follows:

(1) New PermitsFee
Large Surface Mining Permit—Mining below water table
$20,225
Large Surface Mining Permit—Not mining below water table
$13,500
Small Surface Mining Permit
$525
General Permit
$525
Underground Mining Permit
$20,225
(2) Major AmendmentsFee
Large Surface Mining Permit—Mining below water table
$3,850
Large Surface Mining Permit—Not mining below water table
$1,600
Underground Mining Permit
$2,650
(3) Minor AmendmentsFee
Large Surface Mining Permit
$700
Small Surface Mining Permit
$175
(4) Transfers
Fee
Large Surface Mining Permit
$900
Underground Mining Permit
$900
Small Surface Mining Permit
$175
(5) Other Actions Fee
Bonding Increment
$450
Completion Report Application
$600
Blast Plan
$475
Notice of Intent to Explore
$60
Preapplications
$3,375
(f) The annual administration fee schedule will be as follows:
Permit Category—Permit Status     Annual Fee
Large Surface Mining Permit—Active
$1,450
Large Surface Mining Permit—Active with blasting
$1,850
Small Surface Mining Permit—Active
$200
Small Surface Mining Permit—Active with blasting
$300
Underground Mining Permit—Active
$1,450
General Permit—Short Term Construction
$200
All Permits—Not Started
$100
All Permits—Inactive
$100

REVIEW, PUBLIC PARTICIPATION, ITEMS
AND CONDITIONS OF PERMIT APPLICATIONS

§ 77.126. Criteria for permit approval or denial.

*  *  *  *  *

(c) A permit, permit renewal or revised permit application will not be approved, unless the applicant has made full payment of the permit application fee required under § 77.106(e) (relating to fees) and the annual administration fee required under § 77.106(f) for all of the applicant's permitted mining facilities.

[Pa.B. Doc. No. 10-1584. Filed for public inspection August 27, 2010, 9:00 a.m.]



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