PENNSYLVANIA

• Citation: 30 CFR Part 938
• Sections: 9

§ 938.1 Scope.

This part contains all rules applicable only within Pennsylvania that have been adopted under the Surface Mining Control and Reclamation Act of 1977.

§ 938.10 State regulatory program approval.

The Pennsylvania state program as submitted on February 29, 1980, as amended on June 9, 1980, as resubmitted on January 25, 1982, and amended on April 9, 1982, and May 5, 1982, is conditionally approved, effective on July 31, 1982. Beginning on that date, the Department of Environmental Resources shall be deemed the regulatory authority in Pennsylvania for all surface coal mining and reclamation operations and for all exploration operations on non-Federal and non-Indian lands. Only surface coal mining and reclamation operations on non-Federal and non-Indian lands shall be subject to the provisions of the Pennsylvania permanent regulatory program. Copies of the approved program, together with copies of the letter of the Department of Environmental Resources agreeing to the conditions in 30 CFR 938.11 are available at the following locations:

(a) Pennsylvania Department of Environmental Resources, Market Street State Office Building, 400 Market Street, P.O. Box 2063, Harrisburg, Pennsylvania 17101-2063; Telephone: [phone].

(b) Office of Surface Mining Reclamation and Enforcement, Third Floor, suite 3C, Harrisburg Transportation Center, 4th and Market Streets, Harrisburg, Pennsylvania 17101; Telephone: [phone].

§ 938.11 Conditions of State regulatory program approval.

The approval of the Pennsylvania state program is subject to the Commonwealth revising its program to correct the deficiencies listed in this section. The program revisions may be made, as appropriate, to the statutes, the regulations, the program narrative, or the Attorney General's opinion. This section indicates, for the general guidance of the Commonwealth, the component of the program to which the Secretary recommends the change be made.

(a)-(i) [Reserved]

§ 938.12 State statutory, regulatory, and proposed program amendment provisions not approved.

(a) We are not approving the following provisions or portions of provisions of the proposed program amendment that Pennsylvania submitted on July 29, 1998:

(1) Section 5.1(b) (52 P.S. 1406.5a(b)) of BMSLCA is not approved to the extent noted in 30 CFR 938.13(a)(1).

(2)-(4) [Reserved]

(5) Section 5.2(g) (52 P.S. 1406.5b(g)) of BMSLCA is not approved to the extent noted in 30 CFR 938.13(a)(2).

(6) Section 5.2(h) (52 P.S. 1406.5b(h)) of BMSLCA is not approved to the extent noted in 30 CFR 938.13(a)(3).

(7)-(10) [Reserved]

(11) Section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) of BMSLCA is not approved to the extent noted in 30 CFR 938.13(a)(4).

(12) Section 5.4(c) (52 P.S. 1406.5d(c)) of BMSLCA is not approved to the extent noted in 30 CFR 938.13(a)(5).

(13) Section 5.5(b) (52 P.S. 1406.5e(b)) of BMSLCA is not approved to the extent noted in 30 CFR 938.13(a)(6).

(b) We are not approving the following portions of provisions of the proposed program amendment that Pennsylvania submitted on November 22, 1999:

(1) Sections 25 Pa. Code 86.124(f) and 25 Pa. Code 86.125(j) are not approved to the extent that these sections would allow Pennsylvania more time to complete a final written decision on a lands unsuitable for surface mining activities petition than is allowed by the provisions of the Federal regulations at 30 CFR 764.19(b).

(c) We are not approving the following portions of provisions of the proposed program amendment that Pennsylvania submitted on December 18, 1998:

(1) 4.2(f)(4) of PASMCRA. We are not approving Subsection (4) to the extent that it would allow Phase 3 bond release.

(2) 4.12(b) of PASMCRA. We are not approving Subsection (b) to the extent that it creates an alternative bonding system.

(3) 25 Pa. Code 86.281(e). The last sentence which states, “If the actual cost of reclamation by the Department exceeds the amount reserved, additional funds from the Remining Financial Assurance Fund will be used to complete reclamation” is not approved.

(4) [Reserved]

(5) 25 Pa. Code 87.119 and 88.107. With regard to coal mining activities, we are not approving Subsection (a) to the extent that it would allow the replaced water supply to be of a lesser quantity and quality than the premining water supply or does not provide for temporary replacement of water supplies. We are not approving Subsection (a)(1)(v) to the extent it would pass on operating and maintenance costs of a replacement water supply in excess of the operating and maintenance costs of the premining water supply to the landowner or water supply user. We are not approving Section (a)(2) to the extent that an operator is not required to provide for all increased operating and maintenance costs of a restored or replaced water supply. Finally, we are not approving Subsection (a)(3) to the extent it would allow a waiver from the requirements for replacing a water supply outside the requirements of 30 CFR 701.5 regarding the definition of the term, “replacement of water supply.”

(6) 25 Pa. Code 87.119(g) and 88.107(g). These sections are not approved.

(7) [Reserved]

(d) [Reserved]

(e) We are deferring our decision on the inclusion of minimal-impact post-mining discharge in the definition of post-mining pollutional discharge until such time as the State submits the definition of minimal-impact post-mining discharge to us as a proposed program amendment.

(f) We are not approving the following portions of provisions of the proposed program amendment that Pennsylvania submitted on August 5, 2021:

(1) 25 Pa. Code 87.119a and 88.107a. We are not approving subsections (b), (c), and (f) to the extent that they would allow the replaced water supply to be of a lesser quantity and quality than the premining water supply.

(2) 25 Pa. Code 87.119a(e) and 88.107a(e). We are not approving these subsections to the extent that they would set the amount of reimbursement based on estimates of an “adequate” water supply rather than one of equivalent quantity and quality to the premining supply.

(3) 25 Pa. Code 87.119a(i) and 88.107a(i). We are not approving these subsections to the extent that they would allow a waiver from the requirements for replacing a water supply outside the requirements of 30 CFR 701.5 regarding the definition of the term, “replacement of water supply.”

§ 938.13 State statutory and regulatory provisions set aside.

(a) The following provisions of Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) are inconsistent with the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and are superseded to the extent noted effective December 9, 2004.

(1) Section 5.1(b) (52 P.S. 1406.5a(b)) of BMSLCA is superseded to the extent that it would limit an operator's liability to restore or replace a water supply covered under section 720 of SMCRA.

(2) Section 5.2(g) (52 P.S. 1406.5b(g)) of BMSLCA is superseded to the extent that it would limit an operator's liability to restore or replace a water supply covered under section 720 of SMCRA.

(3) Section 5.2(h) (52 P.S. 1406.5b(h)) of BMSLCA is superseded to the extent it would preclude Pennsylvania from requiring the restoration or replacement of a water supply covered under section 720 of SMCRA.

(4) The portion of section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) of BMSLCA that states, “in place on the effective date of this section or on the date of first publication of the application for a Mine Activity Permit or a five-year renewal thereof for the operations in question and within the boundary of the entire mine as depicted in said application,” is superseded to the extent it would limit an operator's liability for restoration of, or compensation for, subsidence damages to structures protected under section 720 of SMCRA that were in existence at the time of mining.

(5) Section 5.4(c) (52 P.S. 1406.5d(c)) of BMSLCA is superseded to the extent it limits an operator's liability for repair of, or compensation for, subsidence damage to a structure covered under section 720 of SMCRA.

(6) The portion of Section 5.5(b) (52 P.S. 1406.5e(b)) of BMSLCA that states, “All claims under this subsection shall be filed within two years of the date damage to the building occurred” is superseded to the extent that it would limit an operator's liability for restoration of, or compensation for, subsidence damages to a structure covered under section 720 of SMCRA.

(b) [Reserved]

§ 938.15 Approval of Pennsylvania regulatory program amendments.

The following is a list of the dates amendments were submitted to OSM, the dates when the Director's decision approving all, or portions of these amendments, were published in the Federal Register and the State citations or a brief description of each amendment. The amendments in this table are listed in order of the date of final publication in the Federal Register.

Original amendment submission date

Date of final publication

Citation/description

April 26, 1983, May 12, 1983

October 5, 1983

Bureau of Water Quality Management Underground Mine/Coal preparation Plant Permit Application Instructions; Bituminous Underground Mining Operation Permit/Manual; Coal Refuse Disposal Permit Application; Anthracite Coal Refuse Disposal Permit Application; Anthracite Bank Removal and Reclamation Permit Application; Anthracite Surface Mine Permit Application; Anthracite Underground Mining Operation Permit Application/Manual; Memorandum of Understanding between the Pennsylvania Department of Environmental Resources and the Pennsylvania Museum and Historical Commission.

August 1, 1983

January 4, 1984

25 PA Code 89.143(2)(iii)(A) through (D), (4), .144(b)(3), .145(a)(4), (b), (d), .146(e), .147(a).

January 17, 1984

March 20, 1984

Pennsylvania policy statement: Citizen Complaint Procedures, Department of Environmental Resources Inspection and Enforcement Policy for Mining Operations, Civil Penalty Program.

October 31, 1983

May 15, 1984, July 3, 1984

25 PA Code 86.5, .38(b), .112(b), .134(c), .211; 87.1, .112(c)(1), (2), (d), (e), .144, .138, .175; 89.86(a)(1), .161, .162, .163; 90.1, .112(c), (d), (e); addendum to the DER Inspection and Enforcement Policy for Mining Operations.

March 30, 1984

November 27, 1984

25 PA Code chapter 88, subchapters A through D, F.

March 2, 1984

April 4, 1985

Blaster training, examination and certification program, as contained in 25 PA Code chapter 210, subchapter A.

April 19, 1985

August 15, 1985

Blaster certification program.

April 18, 1985

November 4, 1985

25 PA Code chapter 89, subchapter F on subsidence control regulations.

September 5, 1985

February 19, 1986

Act 158 of 1984; 25 PA Code chapter 87, subchapter F; chapter 88, subchapter G; letters from the Pennsylvania Deputy General Counsel and the First Deputy Attorney General to Rebecca W. Hanmer, Director, Office of Water Enforcement Permits, U.S. EPA, dated July 8, 1985, and August 19, 1985, respectively.

November 2, 1984

May 19, 1986

25 PA Code 86.37(a)(13), .171(e)(12), .172(d)(2)(iii); 88.1—definitions for “cropland,” “historically used for cropland,” “prime farmland,” and “soil survey”, .24(b)(4), .30(a), (1), .31(a)(7), .32, .61, .129, .134(a), (e), .135(c)(1), (f)(2), (h), .136(a), (c), .137(18), (19), .217, .330, .381(b)(2), (c)(6), (8), (9), .491(i)(1), (13), (22), (23), (j), (k), .492(m), .493(8).

September 30, 1985

September 8, 1986

Civil Penalty Program: §§ I, II.2, II.4, II.8; Inspection and Enforcement Policy: §§ II.B.2.a.(4), (5), E, J.

April 18, 1985

June 18, 1987

25 PA Code 89.143(b).

January 22, 1987

July 14, 1987

§ 4.2(F)(II): right-of-entry requirements.

April 14, 1987

October 27, 1988

§§ II.J of the Inspection and Enforcement Policy, II.2 of the Civil Penalty Program, both concern alternative enforcement actions for failure to abate violations.

December 5, 1988

July 14, 1989

25 PA Code 86.1, .12; 88.1, .381; 89.5.

August 17, 1988

August 18, 1989

Civil Penalty Program, § II (Assessment), paragraph 4; Program Guidance Manual, § 1:3:6 (Civil Penalty Assessments) part 1—Coal, paragraph 4.

August 21, 1986

November 3, 1989

PA Policy Statement entitled Reclamation in Lieu of Cash Payment for Civil Penalties found in Department of Environmental Resources Program Guidance Manual at § 1:3:9.

December 22, 1989

May 31, 1991

25 PA Code 86.17(e), .83(a)(2), .112(b)(1), .158(b)(1), (2), (3), .174(d)(1), .175(1), (2), (3), .182(d); 87.73, .112(b)(1), (f), .125(a), .127(e)(2), (h), .131(n), .135(a), .138; 88.24(b)(4), .492(c)(4); 89.34(a)(1), (2)(ii), .59(a)(1), (2), (3), .71(d), .82, .101(a), (d), .172(b); 90.112(b)(1), (d), (f), .150.

September 24, 1986

October 24, 1991

25 PA Code 86.182, .186 through .190; PA SMCRA §§ 3.1, 4(a), (b), 18(c)(i), 18.8.

May 27, 1992

October 28, 1992

25 PA Code 86.83, .94.

June 2, 1992

November 16, 1992

25 PA Code 86.1; 88.1, .381; 89.5.

December 18, 1991

December 30, 1992, January 14, 1993, April 8, 1993

25 PA Code 86.1, .36(c), .37(a), (c), .41 .43, .44, .52(c)(4), .53, .55(d), .62, .63, .101, .102, .129, .132, .133, .134(3)(ii)(C), (12), .136, .151(a), (d), (h), .163, .165, .193(3), (f), .194, .195, .202, .212; 87.1, .11, .14, .21, .42(2), .54(a)(9), (22), .77, .112(c), .151(d), .155, .160, .166; 88.1, .22(2), .31(a)(9), (22), .56, .115, .116, .381(c)(9), .491(a)(1)(ii), (i)(7), .492(f); 89.5, .26, .38(a), (b), (c), .86, .90, .111(c); 90.1, .11(a)(3), .21(a)(9), (24), .40, .112(c), .134, .140, .155(d), .159.

February 18, 1993

July 6, 1993

25 PA Code 86.17.

March 9, 1993

December 6, 1993

PA SMCRA § 4(d) concerning financial instruments for performance bonds.

May 11, 1993

July 20, 1994

25 PA Code 86.142, .159, .166.

October 24, 1994

April 3, 1995

25 PA Code 86.81 through .89, .91 through .95.

December 19, 1996

May 30, 1997

25 PA Code, Chapter 86, Subchapter D: 86.101; 86.102; 86.103; 86.121; 86.122; 86.123; 86.124; 86.125; 86.126; 86.127; 86.128; 86.129; 86.130.

January 23, 1995

November 7, 1997

Chapters 86 through 90.

September 13, 1995

April 22, 1998

Pennsylvania law Act 1994-114 concerning the special authorization for refuse disposal in areas previously affected by mining which contain pollutional discharges: Title and 1; 3; 3.2(b); 4.1; 6.1(h)(5), (i); 6.2; 6.3; 15.1.

October 8, 1998

March 26, 1999 and June 8, 1999

52 P.S. 1396.3, 1396.4h.

August 17, 1998

February 2, 2000

Letter from Pennsylvania to OSM dated August 17, 1998 (PA-837.80), except a decision on the required amendment at 30 CFR 938.16(www) is deferred.

November 2, 1999

November 3, 2000

25 Pa. Code 86.1, 86.124, 86.152, 86.156, 86.160, 86.171, 86.182, 86.193, 86.194, 86.195, 86.201, and 86.202.

November 8, 1999

March 23, 2000

25 PA Code §§ 86.80, 86.81, 86.82, 86.83, 86.84, 86.85, 86.86 (deleted), 86.87, 86.91 (deleted), 86.92, 86.94, 86.95 (deleted). Note: The incorporation of the reference to § 89.34 at 86.81(a)(2)(iii)(C) and 86.81(a)(2)(iv)(C) is approved to the extent that Pennsylvania implements this provision consistent with the SOAP funding provisions of SMCRA section 507(c)(1)(A) and the implementing regulations at 30 CFR 795.9(b)(1). The incorporation of this reference into subsections 86.81(a)(2)(iii)(C) and 86.81(a)(2)(iv)(C) is not approved to the extent that the proposed subsections would authorized the expenditure of Pennsylvania SOAP funds under the subsections listed above for services that are not fundable under section 507(c)(1)(A) of SMCRA or 30 CFR 795.9(b)(1). 25 PA Code 86.81(a)(2)(iii) is approved to the extent that the SOAP funds are not used to fund the activities required under 25 PA Code §§ 87.41 and 87.42(1) or §§ 88.21 and 88.22(1). The reference of §§ 87.77, 88.56 and 89.38 (regarding archaeological and historic information) into subsections 86.81(a)(2)(iv)(A), (B) and (C) is approved to the extent that Pennsylvania implements these provisions consistent with the SOAP funding provisions of SMCRA section 507(c)(1)(D) and the implementing regulations at 30 CFR 795.9(b)(4). The incorporation of these references (regarding public parks) into subsections 86.81(a)(2)(iv)(A), (B) and (C) is not approved to the extent that the proposed subsections would authorized the expenditure of Pennsylvania SOAP funds under the subsections listed above for services that are not fundable under section 507(c)(1)(D) of SMCRA or 30 CFR 795.9(b)(4).

November 30, 1999

June 26, 2000

25 Pa. Code 86.2, 86.37, 86.40, 86.64, 86.70, 86.132-86.134, 86.174, 87.1, 87.77, 87.93, 87.97, 87.101, 87.106, 87.126, 87.127, 87.138, 87.144, 87.146, 87.159, 87.160, 87.166, 87.173, 87.174, 87.176, 87.209, 88.1, 88.56, 88.83, 88.91, 88.96, 88.118, 88.133, 88.138, 88.144, 88.191, 88.221, 88.231, 88.237, 88.283, 88.291, 88.296, 88.334, 88.335, 88.341, 88.492, 88.509, 89.38, 89.65, 89.67, 89.82, 89.87, 89.88, 89.90, 90.1, 90.40, 90.93, 90.97, 90.101, 90.106, 90.134, 90.140, 90.147, 90.150, 90.166.

January 3, 2001

August 15, 2001

25 Pa. Code 86.174.

January 3, 2001

November 16, 2001

Addition of Chapter 77, Section 7708 to 2001 Title 27 of the Pennsylvania Consolidated Statutes; repeal of the fifth sentence of section 4(b) and section 4.2(f)(5) of the Surface Mining Conservation and Reclamation Act of May 31, 1945 (P.L. 1198, No. 418); repeal of the last sentence of section 5(g) of the Bituminous Mine Subsidence and Land Conservation Act of April 27, 1966 (1st Sp. Sess., P.L. 31, No. 1); repeal of the last sentence of section 5(i) of the Coal Refuse Disposal Control Act of September 24, 1968 (P.L. 1040, No. 318).

July 29, 1998

December 27, 2001

Bituminous Mine Subsidence and Land 2001 Conservation Act: Repeal of Section 4 (52 P.S. 1406.4); 5(b)(partial approval); 5.1(a)(1) (52 P.S. 1406.5a(a)(1) (conditional approval); 5.1(a)(2) and (3) (52 P.S. 1406.5a(a)(2) and (3)); 5.2(a)(1), (2), and (3) (52 P.S. 1406.5b(a)(1), (2), and (3)); 5.2(b)(1) (52 P.S. 1406.5b(b)(1)); 5.2(c) (52 P.S. 1406.5b(c)); 5.2(e)(1) and (3) (52 P.S. 1406.5b(e)(1) and (3)); 5.2(f) (52 P.S. 1406.5b (f); 5.2(j) (52 P.S. 1406.5b(j)); 5.2(k) (52 P.S. 1406.5b(k)); 5.4(a) (52 P.S. 1406.5d(a))(partial approval); 5.4(a)(1), (2) and (4) (52 P.S. 1406.5d(a)(1), (2) and (4)); 5.4(b) (52 P.S. 1406.5d(b)); 5.5(a) (52 P.S. 1406.5e(a))(partial approval); 5.5 (d), (e), and (g) (52 P.S. 1406.5e(d), (e) and (g)); 5.6(a) and (b) (52 P.S. 1406.5f(a) and (b)); 6 (52 P.S. 1406.6))(partial approval); 9.1(a), (b), (c), and (d) (52 P.S. 1406.9a(a), (b), (c), and (d); Repeal of Section 15 (52 P.S. 1406.15); 17.1 (52 P.S. 1406.17a); 18.1 (52 P.S. 1406.18a) 25 Pa. Code Section: 89.5, the definitions of the following terms: “dwelling,” “irreparable damage,” “material damage,” “noncommercial building,” “public buildings and facilities,” “public water supply system,” “rebuttable presumption area,” “underground mining,” “underground mining operations,” and “water supply;” 89.33; 89.34; 89.35; 89.36; 89.141(a); 89.141(d)(2), (4), (5), (7), (8), (10) and (11); 89.141(d), (d)(3), (6), and (9)(partial approval); deletion of 89.142; 89.142a(a) (partial approval) 89.142a(a)(1), (2), (3) and (4); 89.142a(b); 89.142a(c)(1) and (2)(i) “ (v); 89.142a(c)(3) (partial approval); 89.142a(d) (partial approval); 89.142a(e); 89.142a(f)(1) (partial approval); 89.142a(f)(1)(i), (ii), (iv), and (v); 89.142a(f)(2)(i) (partial approval); 89.142a(g)(1) (partial approval); 89.142a(g)(2), and (3); 89.142a(h) (1) and (2) (partial approval); 89.142a(i)(1) (partial approval); 89.142a)(i)(2), (j), (k), and (l); deletion of 89.143; 89.143a(a) (partial approval); 89.143a(b); 89.143a(d)(1) and (2) (partial approval);deletion of 89.144; 89.144a(a)(2), and (3); deletion of 89.145; 89.145a(a)(1)(i)-(vi); 89.145a(a)(2) and (3); 89.145a(b)(partial approval); 89.145a(c); 89.145a(d); 89.145a(e)(1) and (2) (partial approval); 89.145a(f)(1)(i)-(iv); 89.145a(f)(2); 89.145a(f)(3)(i) and (ii)(partial approval); 89.145a(f)(3)(iii); 89.145a(f)(4); 89.146a(a) and (b); 89.146a(c) (partial approval); 89.152(a)(1) and (3); 89.152(b); 89.153 (a), (b), and (c); 89.154(a) through (d); 89.155(a), 89.155(b)(1) and (2) (partial approval); 89.155(b)(3) and (4); 89.155(c) (partial approval).

February 25, 2002

November 6, 2002

25 Pa. Code 86.37, 87.160, 88.138, 88.231, 88.335, 90.134, 87.160.

November 22, 1999

July 7, 2003

25 Pa. Code 86.1 definition of “valid existing rights;” 86.101 definitions of “fragile lands,” “historic lands,” “public building,” “public park,” “renewable resource lands,” “significant recreational value, timber, economic or other values incompatible with surface mining operations,” and “surface mining operations;” 86.102(1), (3) through (5), and (7) through (12); 86.103(c), (d), and (e); 86.121, 86.123(c) and (c)(5); 86.124(a), (c), (d) and (f); 86.125; 86.126; 86.127; 86.128; 86.129; and 86.130(b).

February 25, 2002

August 15, 2003

25 Pa. Code 210.11; 210.13—210.19; 211.101-211.103; 211.111-211.115; 211.121-211.125; 211.131-211.133; 211.141; 211.151-211.162; 211.171-211.173; 211.181-211.182

December 20, 2001

October 2, 2003

25 Pa. Code 88.281, 88.310, 88.332, 89.59, 90.1, 90.5, 90.12, 90.13, 90.34, 90.45, 90.49, 90.50, 90.101, 90.116a, 90.122, 90.167, 90.201-207, 90.301-309, and 90.401.

August 27, 2003

December 9, 2004

25 Pa. Code 86.1 modification of definition of underground mining activities, 86.151(b)(2), 86.152(a), 89.5, Addition of definitions of EPAct structures and EPAct water supplies; removal of definition of permanently affixed appurtenant structures; modification of definitions of underground mining activities and underground mining operations, 89.141(d), 89.142a(a), (c) through (i), 89.143a(a), (c) and (d), 89.144a(a) and (b), 89.145a(a), (b), (e) and (f), 89.146a(c)(2), and 89.152(a) and (b). In BMSLCA, Sections 5.2(b)(2), 5.2(d), 5.2(e)(2), 5.2(i), 5.3(a), 5.3(b), 5.3(c), 5.5(c), 5.5(f), 5.6(c), and 5.6(d).

December 18, 1998

May 13, 2005

In PASMCRA, Section 3 Definition of “Total Project Costs;” Sections 3.1; 4(a), (d), (d.2), (g), and (h); 4.2(f) (partial approval); 4.2(i); 4.6(i) and (j); 4.7; 4.10; 4.11; 4.12 (partial approval); 4.13; 18(a), (a.1), (a.2), and (a.3); 18(f), (g)(4) and (5); 18.7; 18.9; 18.10.

25 Pa. Code 86.142 Definitions of “Annuity,” “Trustee,” and “Trust Fund;” 25 Pa. Code 86.151(b), (c), and (j); 86.152(a) and (b); 86.156(b); 86.157(3), (4), (5), (6), (7), and (8); 86.158(c)(6), (e), (f), and (g); 86.161(3); 86.168; 86.171(a), (b)(6) and (7), (f)(4), (g), and (h); 86.174(a) and (d); 86.175(a) and (b)(3); 86.182(a)(3) and (4), (d), (e), (f), (g); 86.195(b), 86.251-253; 86.261-86.270; 86.281(a)-(d); 86.281(e) (partial approval); 86.282-284; 86.291-295; 86.351-359.

25 Pa. Code 87.1 Definitions of “Water Supply,” “Water Supply Survey”; deletion of 87.11-21; 87.119 (partial approval); 87.147(b).

25 Pa. Code 88.1 Definitions of “Water Supply,” “Water Supply Survey”; 88.107 (partial approval); 88.121(b); 88.209(b).

May 23, 2006

April 17, 2007

25 Pa. Code: 86.187(a)(1), (b), (c); 86.188(b)(5) [deleted]; 86.188(c)(3) [deleted]; 86.189(c)(2) through (c)(4) [deleted reference to (c)(5)], 86.189 (c)(5) [deleted]; 86.190 (a) [the words “but are not limited to” are deleted]; 86.190(a)(3) [deleted].

December 18, 2006

October 4, 2007

25 Pa. Code 86.6 [add].

June 8, 2006

December 1, 2008

25 Pa. Code 210.11, 87.1, 88.1, and 89.5 added definition for mine opening blasting; 87.124(b) correction of reference error; 87.126(b)(2)(ii) phrase deletion; 87.127(b), 87.127(e), 87.127(e)(1) ,87.127(f)(1); 87.129(4);88.135(a), 88.135(b), 88.135(f)(1), 88.135(h) , 88.135(i); 88.493(7)(i); 89.62 (adding new language); 87.127(l) and 88.135(l) (deleted in their entirety).

August 1, 2008

August 10, 2010

52 P.S. 1396.4(d.2); 25 Pa. Code 86.1, 86.17(e), 86.187(a); The Conversion Assistance Program; Trust Funds as an Alternative Bonding System (ABS); Demonstration of Sufficient Funding for Outstanding Land Reclamation at Primacy ABS Forfeiture Sites; and, Demonstration of Sufficient Funding for Construction of All Necessary Discharge Treatment Facilities at the ABS Forfeiture Sites.

December 19, 2012

September 10, 2013

Addition of definitions to 25 Pa. Code 86.1, clarification of 86.3, and increase of fees at 86.17.

February 24, 2010

October 19, 2015

52 P.S. 30.54a(a)(6).

November 14, 2016

July 10, 2017

Pennsylvania's commitment to the completion of treatment systems for pollutional discharges on ABS Legacy Sites.

October 1, 2010

November 9, 2020

Section 4.2(j) of PASMCRA 52 P.S. § 1396.4bj); 25 Pa. Code § 86.1, Definitions, the definitions of the following terms: “passive treatment system” and “post-mining pollutional discharge, except for the inclusion of “minimal impact post-mining discharge” in the definition of “post-mining pollutional discharge” 25 Pa Code 87.102(a) and (e), Hydrologic balance: Effluent standards; 88.92 (a) and (e); Hydrologic balance: Effluent standards; 88.187 (a) and (e), Hydrologic balance: Effluent standards; 88.292 (a) and (e), Hydrologic balance: Effluent standards; 89.52 (c), Water quality standards, effluent limitations, and best management practices; and 90.102 (a) and (e), Hydrologic balance: Water quality standards, effluent limitations, and best management practices.

March 13, 2012

April 12, 2022

25 Pa. Code 287.1 (Residual Waste Management-General Provisions), 290.1, 290.101, 290.103, 290.104, 290.107, 290.201, 290.202, 290.203, 290.301, 290.302, 290.303, 290.304, 290.305, 290.306, 290.307 (Beneficial Use of Coal Ash).

July 26, 2017

August 8, 2024

PASMCRA sec. 4(d), 19.2 Authorizing LRFG program; PASMCRA sec. 4(a)(2)(C), 4.14, authorizing bioenergy crop bonding; PASMCRA sec. 3 definitions, 18(a.1), 19, minor changes; 25 Pa. Code 86.17(e)(2), 86.162b, 86.165(a) and (a)(iii), implementing the LRFG program; 25 Pa. Code 86.162c, implementing the bioenergy crop bonding program; 25 Pa. Code 86.1 definition of Acts, 86.6(a), 86.12(a)(3), 86.121, 86.155, 86.159(k)(2)(A), 86.182(h)(2), 86.185, 86.232 definition of coal mining laws, 86.252 definition of Act, 86.358(a)(3), 87.1 definition of SMCRA, 87.205(b), 88.482 definition of operator, 88.505(b), 89.5 definition of operator, and 90.305(b), citation changes and other minor changes.

August 9, 2018

September 8, 2024

25 Pa. Code 87.108(c), 89.24(c), and 90.108(c); removal of sedimentation ponds before 2 years if replaced by BTCA.

March 16, 2020

June 27, 2025

25 Pa. Code 86.1 (amending definition of “surface mining activities”); 25 Pa. Code 86.31(c)(1)(removing registered mail requirement); 25 Pa. Code 86.62(a)(3) (removing date of issuance requirement); and 25 Pa. Code 86.238 (updating OSMRE form number); 25 Pa. Code 86.151(d); 25 Pa. Code 86.158(b)-(b)(3); 25 Pa. Code 86.193(b)-(c) (incorporating Federal penalty schedule for mandatory assessment threshold); 25 Pa. Code 86.281(b), (c), (d), and (f) (changing various provisions of the remining financial guarantee incentive program); 25 Pa. Code 87.1 (amending definition of “surface mining activities”); 25 Pa. Code 87.103, 88.93, 88.188, 88.293, and 89.53 (replacing storm event tables with NOAA data); 25 Pa. Code 87.157; 25 Pa. Code 88.1 (amending of definition for “haul roads”); 25 Pa. Code 88.131; 25 Pa. Code 88.219; and 25 Pa. Code 89.52(f) (deleting of portion of subsection (f), eliminating the alternative effluent limits for passive treatment systems for underground mines).

Minor changes and citation corrections: 52 P.S. 305.54a; 25 Pa. Code 86-90; 25 Pa. Code 86.51; 25 Pa. Code 86.54; 25 Pa. Code 86.84; 25 Pa. Code 86.162a; 25 Pa. Code 86.189(b)(4); 25 Pa. Code 86.232; 25 Pa. Code 86.282(a)(4); 25 Pa. Code 86.284(d); 25 Pa. Code 87.100(d); 25 Pa. Code 87.102; 25 Pa. Code 88.1; 25 Pa. Code 88.92; 25 Pa. Code 88.187; 25 Pa. Code 88.190(b)-(g); 25 Pa. Code 88.292; 25 Pa. Code 88.295(b)-(i); 25 Pa. Code 88.502; 25 Pa. Code 88.507(c); 25 Pa. Code 88.508; 25 Pa. Code 89.52; 25 Pa. Code 90.102; and 25 Pa. Code 90.308.

August 5, 2021

July 28, 2025

25 Pa. Code 87.1 (addition of definitions for “operation and maintenance costs” and “water supply owner,” revision of the definition for “water supply”); 25 Pa. Code 88.1 (addition of definitions for “operation and maintenance costs” and “water supply owner,” revision of the definition for “water supply”); 25 Pa. Code 87.47 (revision of text to permit application requirements, including renumbering of an internal reference, rewording text to indicate “any water supply,” removal of requirement that water supply is “for domestic, agricultural, industrial or other legitimate use,” addition of a requirement to provide cost calculations to restore or replace water supplies, and addition of requirement that PADEP notify the water supply owner of any potentially affected water supply); 25 Pa. Code 88.27 (revision of text to permit application requirements, including rewording text to indicate “any water supply,” removal of requirement that water supply is “for domestic, agricultural, industrial or other legitimate use,” addition of a requirement to provide cost calculations to restore or replace water supplies, and addition of requirement that PADEP notify the water supply owner of any potentially affected water supply); 25 Pa. Code 87.119a(a), (d), (g), (h), (j), (k), (l), (m), (n), and (o); and 25 Pa. Code 88.107a(a), (d), (g), (h), (j), (k), (l), (m), (n), and (o).

August 4, 2017

January 15, 2026

Addition of subsections (i) and (j) to Section 5 of BMSLCA (52 P.S. § 1406.5(i) and (j)); amendment of Section 9a(d) of BMSLCA (52 P.S. § 1406.9a(d)).

§ 938.16 Required regulatory program amendments.

Pursuant to 30 CFR 732.17, Pennsylvania is required to submit the following proposed program amendments by the dates specified.

(a)-(e) [Reserved]

(f) By August 24, 1987, Pennsylvania shall amend its regulations at 88.129(f)(1) and (2) and the corresponding provisions under Chapter 88, Subchapters C, D, and F (88.217, 88.330 and 88.491) or otherwise amend its program to be consistent with section 510(d) of SMCRA by requiring that the restoration of prime farmland soil productivity shall be determined on the basis of measurement of crop yields.

(g)-(v) [Reserved]

(w) By November 1, 1991, Pennsylvania shall amend §§ 87.125(a), or otherwise amend its program to be no less stringent than section 515(b)(15)(E) of SMCRA to provide the opportunity to request a preblasting survey to every resident or owner of a man-made structure or dwelling within one-half mile of any part of the permit area.

(x)-(qq) [Reserved]

(rr) By May 1, 1993, Pennsylvania shall submit a proposed amendment to section 86.36(c) to require permit denial for unabated violations of any Federal or State program under SMCRA, without the three-year limitation.

(ss) [Reserved]

(tt) By May 1, 1993, Pennsylvania shall submit a proposed amendment to section 86.37(a)(10) to require that all violations of the Federal SMCRA and all programs approved under SMCRA be considered in determining whether there is a demonstrated pattern of willful violations.

(uu) By May 1, 1993, Pennsylvania shall submit a proposed amendment to section 86.37(a) to require that the criteria upon which the regulatory authority bases its decision to approve or deny a permit application are based on all information available to the regulatory authority.

(vv) By May 1, 1993, Pennsylvania shall submit a proposed amendment to section 86.37(a) to include language that would prohibit permit approval if the applicant or anyone linked to the applicant through the definition of “owned or controlled” or “owns or controls” has forfeited a bond and the violation upon which the forfeiture was based remains unabated.

(ww) By May 1, 1993, Pennsylvania shall submit a proposed amendment to sections 86.37(a)(9) and (a)(16) to require denial of a permit if it finds that those linked to the applicant through the definition of “owned or controlled” or “owns or controls” are delinquent in payment of abandoned mine reclamation fees or delinquent in the payment of State and Federal final civil penalty assessments.

(xx) By May 1, 1993, Pennsylvania shall submit a proposed amendment to section 86.37(c), to require that the regulatory authority's reconsideration of its decision to approve the permit include a review of information, updated for the period from permit approval to permit issuance, pertaining to the payment of abandoned mine reclamation fees and civil penalty fees and the status of unabated violations upon which a bond forfeiture was based.

(yy) By May 1, 1993, Pennsylvania shall submit a proposed amendment to section 86.43, to require the regulatory authority to review the circumstances under which a permit was issued whenever it has reason to believe that the permit may have been improvidently issued.

(zz) By May 1, 1993, Pennsylvania shall submit a proposed amendment to section 86.62(b)(2)(ii) to correct the cross-reference to 86.63 with a reference to section 86.212(c).

(aaa) By May 1, 1993, Pennsylvania shall submit a proposed amendment to sections 86.62(c) and 87.14(3) to include the requirement that the application include the address for each permit held by a related entity or company, and identification of the regulatory authority for each such permit.

(bbb) [Reserved]

(ccc) By October 5, 1993, Pennsylvania shall submit a proposed amendment to § 86.133(f) to require that exploration on areas designated as unsuitable for mining shall be subject to permitting requirements no less effective than the Federal regulations at 30 CFR 772.12.

(ddd)-(ggg) [Reserved]

(hhh) By October 5, 1993, Pennsylvania shall submit a proposed amendment to §§ 87.155(b)(5), 89.86(e)(2)(iii)(B) and 90.159(b)(3) to require that at least 80 percent of the trees and shrubs to be used in determining the success of stocking and adequacy of planting, at the time of bond release, have been in place for 60 percent of the applicable minimum period of responsibility.

(iii) By October 5, 1993, Pennsylvania shall submit a proposed amendment to §§ 87.112(c) and 89.111(c) to require a seismic safety factor of at least 1.2 for all impoundments that meet the criteria of 30 CFR 77.216(a) or are located where failure could cause loss of life or serious property damage.

(jjj) By October 5, 1993, Pennsylvania shall submit a proposed amendment to § 90.112(c)(2) to require that all impounding structures that meet the criteria of 30 CFR 77.216(a) and are either constructed of coal mine waste or intended to impound coal mine waste have sufficient spillway capacity and/or storage capacity to safely pass or control the runoff from the 6-hour PMP or greater precipitation event.

(kkk) and (mmm) [Reserved]

(nnn) By September 19, 1994, Pennsylvania shall submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption, to revise section 86.159(l)(2) to require two officer signatures for each corporate indemnitor, an affidavit from the corporation(s) certifying that entering into the indemnity agreement is valid under all applicable Federal and State laws, and documents that evidence the authority of the signatories to bind the corporation and an authorization by the parent corporation to enter into the indemnity agreement.

(ooo) [Reserved]

(ppp) By January 6, 1998, Pennsylvania shall submit a proposed amendment to section 86.5(m), or otherwise amend its program, to provide for notification of the operator and any intervenors of a decision not to revoke an exemption.

(qqq)-(rrr) [Reserved]

(sss) By January 6, 1998, Pennsylvania shall submit proposed amendments to subsections 88.105(c), 88.201(c) and 88.305(c), or otherwise amend its program, to require additional hydrologic testing whenever the PHC determination indicates that adverse impacts may occur to the hydrologic balance, or that acid-forming or toxic-forming material is present that may result in the contamination of surface or ground water supplies.

(ttt) By January 6, 1998, Pennsylvania shall submit a proposed amendment to sections 88.321 and 90.133, or otherwise amend its program, to require that no noncoal waste be deposited in a coal refuse pile or impounding structure.

(uuu) By January 6, 1998, Pennsylvania shall submit a proposed amendment to provide counterparts to the Federal regulations at 30 CFR 702.15 (d), (e), (f) and 702.17 (c)(2) and (c)(3) to require that authorized representatives have the right to enter operations conducting incidental coal extraction and that administrative reviews of the State's determinations be conducted.

§ 938.20 Approval of Pennsylvania abandoned mine land reclamation plan.

The Pennsylvania Abandoned Mine Land Reclamation Plan as submitted on November 3, 1980, is approved. Copies of the approved Plan are available at the following locations:

(a) Pennsylvania Department of Environmental Resources, Bureau of Abandoned Mine Reclamation, Market Street State Office Building, 400 Market Street, P.O. Box 2063, Harrisburg, Pennsylvania 17105-2063.

(b) Office of Surface Mining Reclamation and Enforcement, Harrisburg Field Office, Harrisburg Transportation Center, Third Floor, suite 3C, Fourth and Market Streets, Harrisburg, Pennsylvania 17101.

§ 938.25 Approval of Pennsylvania abandoned mine land reclamation plan amendments.

The following is a list of the dates amendments were submitted to OSM, the dates when the Director's decision approving all, or portions of these amendments, were published in the Federal Register and the State citations or a brief description of each amendment. The amendments in this table are listed in order of the date of final publication in the Federal Register.

Original amendment submission date

Date of final publication

Citation/description

April 17, 1992

October 30, 1992

Part D of Plan—Initiative, part E of Plan—Modifications.

November 21, 1997

March 26, 1999

Part F—Government Financed Construction Contracts.

November 22, 2016

August 16, 2024

Part G—The Pennsylvania Emergency Response Reclamation Program.