Title 25--ENVIRONMENTAL PROTECTION ENVIRONMENTAL QUALITY BOARD [25 PA. CODE CHS. 88 AND 90] Coal Refuse Disposal [31 Pa.B. 3735] The Environmental Quality Board (Board) by this order amends Chapters 88 and 90 (relating to anthracite coal; and coal refuse disposal). The amendments address permitting and performance standards for coal refuse disposal operations.
This order was adopted by the Board at its meeting of April 17, 2001.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact J. Scott Roberts, P.G., Director, Bureau of Mining and Reclamation, P. O. Box 8461, Rachel Carson State Office Building, Harrisburg, PA 17105-8461, (717) 787-5103, or Joseph Pizarchik, 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 AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 voice users). This rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
The amendments are adopted under the authority of section 4.2 of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. § 1396.4b(a)); section 3.2 of the Coal Refuse Disposal Control Act (CRDCA) (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
D. Background and Summary
This rulemaking is necessary to update Chapters 88 and 90 to bring them into conformance with the CRDCA as amended by the act of December 7, 1994 (P. L. 808, No. 114) (Act 114). Act 114 was signed into law on December 7, 1994, and became effective on February 5, 1995.
Subsequent to Act 114 becoming law, the Department developed a supporting technical guidance document, titled ''Coal Refuse Disposal--Site Selection.'' The technical guidance document clarified the Act 114 site selection process and outlined information needed to apply for, and receive, a stream barrier variance under section 6.1 of the CRDCA (52 P. S. § 30.56a). The technical guidance document was circulated for comment to the regulated community, Fish and Boat Commission, Game Commission, the Federal Office of Surface Mining, Reclamation and Enforcement (OSM), the United States Environmental Protection Agency (EPA), the United States Fish and Wildlife Service and the United States Army Corps of Engineers.
Prior to the development of the proposed rulemaking, the Department submitted the Act 114 amendments to OSM for approval as a program amendment. On April 22, 1998, OSM published a conditional approval of the Act 114 amendments in 63 F.R. 77 (April 22, 1998). In the conditional approval, OSM found that the word ''significant'' in section 6.1(h)(5) of the CRDCA, as it pertains to granting variances to the 100-foot stream buffer zone, was inconsistent with Federal law. The Department took action to address this matter by suspending implementation of the term ''significant'' in section 6.1(h)(5) of the CRDCA. This matter was announced at 28 Pa.B.2544 (May 30, 1998). Consequently, the proposed rulemaking regarding stream buffer zone variances was based on language communicated to the Department by OSM in its conditional approval of the Act 114 amendments. The proposed language included a requirement that each stream variance must be accompanied by a demonstration that ''the activities will not cause or contribute to the violation of state or federal water quality standards, and will not adversely affect water quality and quantity, or other environmental resources of the stream.'' That requirement differed from the precise language of section 6.1(h)(5) of the CRDCA, which requires a demonstration that ''there will be no adverse hydrologic or water quality impacts as a result of the variance.'' In the final-form version, § 90.49(c)(1) (relating to stream buffer zone variance) has been revised to more closely follow the statutory language by including the ''as a result of the variance'' phrase.
The OSM's published approval also recognized that the Department's technical guidance document had satisfied the concerns of the United States Fish and Wildlife Service regarding compliance with section 7 of the Endangered Species Act of 1973 (16 U.S.C.A. § 1536). On May 2, 1998, the Department submitted a letter to OSM outlining its approach to addressing the required conditions through rulemaking. This rulemaking includes those clarifications.
These regulatory changes were reviewed and discussed with the Mining and Reclamation Advisory Board (MRAB). The MRAB is the Department's advisory body for regulations pertaining to surface coal mining, including coal refuse disposal. A draft of the proposed rulemaking was reviewed and discussed with the MRAB's Regulation, Legislation and Technical Committee on November 17, 1999. The MRAB concurred with the proposed rulemaking at its meeting on January 6, 2000. The proposed rulemaking was adopted by the Board at its April 18, 2000, meeting and published at 30 Pa.B. 3053 (June 17, 2000). The MRAB reviewed and discussed the draft final rulemaking at meetings on January 4 and February 21, 2001. The MRAB concurred with the final rulemaking at its meeting on February 21, 2001.
The rulemaking adds § 90.5 and amends § 88.281. These sections reflect the requirements of section 4.1 of CRDCA (52 P. S. § 30.54a), which outlines a comparative analysis process for evaluating potential sites for coal refuse disposal. The CRDCA and the proposed regulations establish a two-step process for the permitting of coal refuse disposal sites. The first step is a preapplication site selection process intended to steer applicants to areas previously disturbed by mining. In the absence of previously disturbed sites, the site selection process requires an evaluation of nearby candidate sites with the goal of choosing the site that results in minimal adverse impacts. Following the Department's approval of the applicant's site selection, the applicant proceeds to the second step which involves preparing and submitting a permit application for the selected site. Section 90.5 outlines the need to conduct the mandatory site selection step prior to applying for a permit for coal refuse disposal activities.
The rulemaking amends § 90.12 (relating to geology) to request geologic information that is needed to review a permit application for coal refuse disposal activities. The existing language in § 90.12 is borrowed from Chapter 87 (relating to surface mining of coal) and was written to gather information relating to sites where coal will be mined. The new language solicits information on surficial geology, soils and characteristics of joints and fractures. This information is more useful in evaluating sites that will be used for coal refuse disposal activities. Based on comments received from the MRAB, subsection (b) was added to the final-form regulations to address certification requirements regarding submission of geologic information.
The rulemaking adds language to § 90.13 (relating to groundwater information) regarding groundwater flow as it relates to groundwater and surface water protection, and language describing requirements relating to preventing precipitation from contacting the coal refuse during temporary cessation. Section 90.13 sets forth the requirements of section 6.1(i) of the CRDCA. Under the Act 114 amendments, all new coal refuse disposal areas must include systems to prevent adverse impacts to surface and groundwater. Section 90.13 is intended to solicit collection of the information needed to allow a complete technical evaluation of the proposed groundwater and surface water protection system.
The rulemaking adds a new § 90.49. This new section reflects section 6.1(h)(5) of the CRDCA, which gives the Department authority to grant a variance to dispose of coal refuse within 100 feet (30.48 meters) of the bank of a stream and to relocate or divert streams for the purpose of coal refuse disposal. Language is included to ensure that coal refuse disposal operations, which fall outside the scope of § 90.49, comply with the stream buffer zone provisions of § 86.102(12). Section 90.49 requires the Department to issue the variance as a written order and operators to give public notice of the application for the variance. It also requires the Department to conduct a public hearing when any person files an exception to the proposed variance.
The rulemaking adds § 90.50 and amends § 90.122. The new language outlines design and performance standards for systems to prevent adverse impacts to surface and groundwater and to prevent precipitation from contacting the coal refuse. This language reflects the requirements of section 6.1(i) of the CRDCA. The phrase ''. . . prevent precipitation from coming into contact with the coal refuse'' in § 90.50(b) is based on section 6.1(i) of the CRDCA. This statutory requirement was intended to ensure that precipitation contacting the coal refuse is kept to a minimum, thereby reducing the volume of water needing treatment after the site is closed. The system must be designed and installed in a manner that minimizes the amount of time coal refuse is exposed to precipitation. The objective is to have the system installed incrementally as refuse disposal progresses. The final system, in conjunction with the groundwater and surface water diversion systems, will result in greatly reduced postdisposal outflows.
Section 90.116a (relating to hydrologic balance: water rights and replacement) is added to provide a cross-reference to the water supply replacement provisions of the current surface mining regulations in Chapter 87. The requirement in § 87.119 (relating to hydrologic balance: water rights and replacement) applies to all surface mining activities, one of which is coal refuse disposal. These requirements have been historically used to address water supply impacts at coal refuse sites. The new regulation clarifies that coal refuse disposal site operators are required to replace water supplies that are impacted by their operations.
The rulemaking adds a new Subchapter F (relating to coal refuse disposal activities on areas with preexisting pollutional discharges) to implement section 6.2 of the CRDCA for coal refuse disposal activities on areas previously affected by mining. The CRDCA postponed implementation of the section 6.2 provisions pending the promulgation of regulations governing the use of sites with preexisting pollutional discharges. The new Subchapter F is designed to provide incentives for operators to enter, conduct coal refuse disposal activities and reclaim areas that were previously affected by coal mining activities that have pollutional discharges. The language is modeled on the existing remining incentive provisions of Chapters 87 and 88. These provisions have been in effect since 1985 and have been successful in encouraging operators to enter sites with preexisting pollutional discharges. The result has been new and innovative technology for the control and treatment of mine drainage, improvement to water quality, recovery of coal reserves that would otherwise remain unmined and reclamation of abandoned sites at operator cost instead of state cost.
At the present time, coal refuse disposal site operators who reaffect areas with existing pollutional discharges are not eligible for bond release unless they eliminate those discharges. As a result, operators typically develop coal refuse disposal operations on virgin sites. Section 6.2 of the CRDCA was intended to provide incentives to encourage operators to reclaim previously disturbed land by creating a limited exception to the existing regulations. These exceptions provide for special permits and release of bonds at areas with preexisting pollutional discharges. The new Subchapter F regulations are expected to encourage reclamation of abandoned mine lands.
Finally, the rulemaking adds Chapter 90, Subchapter G (relating to experimental practices). The Subchapter G reflects the requirements of section 6.3 of the CRDCA (52 P. S. § 30.56c). Section 90.401 (relating to general) is designed to encourage advances in coal refuse disposal practices and advances in technology that will enhance environmental protection. Federal regulations require substantial coordination during review of experimental practice applications between the State regulatory agency and OSM. Therefore, Federal counterpart language relating to experimental practices is fully incorporated by cross reference in § 90.401(b) to ensure that the language is consistent with the Federal requirements.
E. Summary of Comments and Responses on the Proposed Rulemaking and Changes Made in the Final Rulemaking
At its meeting on April 18, 2000, the Board approved publication of the proposed amendments. The proposed amendments were published at 30 Pa.B. 3053 (June 17, 2000).
Comments were accepted from June 17 to August 16, 2000. Two public hearings were held on July 19 and July 26, 2000, to accept comments regarding the proposed rulemaking. Comments were received from five parties during the course of the public comment period. Commentators included the United States Fish and Wildlife Service, the United States Office of Surface Mining (OSM), the Game Commission, the Pennsylvania Coal Association (PCA) and the Independent Regulatory Review Commission (IRRC).
The following is a discussion of comments received on the proposed rulemaking and changes made in the final-form rulemaking.
§ 88.310 Coal refuse disposal: general requirements.
The term ''test results'' was inadvertently left out of § 88.310(k) of the proposed rulemaking, and has been inserted in the final version.
§ 90.1. Definitions.
One comment was received regarding the term ''business necessity,'' which is used in §§ 88.310 and 90.167 (relating to coal refuse disposal: general requirements; and cessation of operations: temporary). Sections 88.310 and 90.167 address extensions to time limits for temporary cessation at coal refuse facilities for reasons of labor strike or business necessity. The commentator recommended that the term ''business necessity'' be defined in the regulations.
The Board realizes that the term ''business necessity'' is broad. However, there is benefit to the regulated community and to the Department in using a broad term. The term, left undefined, gives a degree of flexibility to the industry and the Commonwealth. It allows for unforeseen factors to be considered when entertaining requests for extensions based on business necessity. Therefore, the term has not been defined.
One comment was received regarding the definition of ''public recreational impoundment.'' The commentator indicated that since the definition is taken directly from the statute, the Board should simply reference the statute.
The Board believes that repeating statutory definitions in the regulations increases the readability and clarity of the regulations. The practice serves to make the regulation more user-friendly by making definitions of important terms readily available to the reader. The definition remains in the final-form regulations.
A comment was received concerning the term ''operator.'' The commentator pointed out that the term is used throughout the regulations, but is not defined. The commentator suggested referencing the definition of ''operator'' contained in the CRDCA.
The Board concurred that the term should be defined in the regulations. The suggested statutory definition has therefore been inserted in § 90.1 (relating to definitions).
Two comments were received requesting definitions of the terms ''coal refuse disposal operations'' and ''coal refuse disposal activities.''
The Board agrees that there was need for clarification. A definition of ''coal refuse disposal'' was added to § 90.1. The term ''coal refuse disposal operations'' has been deleted from § 90.49. New language has been added at § 90.49(b) to better define the subset of activities that is subject to § 86.102(12). The term ''coal refuse disposal activities'' is defined in § 90.301.
§ 90.5. Site selection and permitting.
One commentator suggested that § 90.5 be revised to clarify when a site selection decision is appealable. The commentator indicated that the regulation should reflect that disapproval of a selected site is a final appealable action while approval of a selected site is not.
The Board agrees with the spirit of the comment. However, clarifying language was not necessary. The site selection process outlined in § 90.5 is the prerequisite to the permitting process. Since the process continues following approval of a selected site, the approval of a site is not an appealable action. Appeals may be appropriately filed at the time of permit issuance. However, when the Department disapproves a site, the operator is precluded from moving to the next step in the process. Disapproval is therefore a final appealable action of the Department.
Additionally, the final-form regulation includes a cross reference to an existing technical guidance document that will be relied upon during the site selection process.
§ 90.12. Geology.
A commentator suggested two changes to § 90.12. One suggestion was to add the phrase ''as appropriate'' after requirements for test borings, geologic information and groundwater information. The second suggested change was to exclude nonuse aquifers from the description requirements.
The Board disagrees with the suggested changes. The term ''as appropriate'' obfuscates the regulation, where currently it is quite clear. The nonuse aquifer concept flows from Act 2 provisions of the Land Recycling and Remediation Program. However, Act 2 specifically excludes mining. Inclusion of the nonuse aquifer concept in the mining program would run counter to the current mining statutes and regulations. These statutes and regulations require that mining activities be conducted to ensure protection of the hydrologic balance, including measures to protect the quality and quantity of surface water and groundwater within the permit and adjacent areas.
The final wording of § 90.12 has been revised to include subsection (b). This revision addresses the need for certification of geologic information and was added based on comments from the MRAB.
§ 90.13. Groundwater information.
One comment was received regarding language of proposed § 90.13(2). The commentator suggested that the phrase ''specific attention'' was vague and that the Board consider revising this subsection to require a description of the groundwater flow system.
The Board agrees. The final-form regulation has been modified as suggested.
§ 90.49. Stream buffer zone variance.
One comment was received regarding specific wording proposed in § 90.49(c)(1). The commentator indicated that the term ''coal refuse disposal activities'' should be used rather than the term ''coal refuse disposal.''
The Board disagrees. Section 90.49 reflects provisions of section 6.1(h)(5) of the CRDCA as amended by Act 114. Section 6.1(h)(5) of the CRDCA clearly enumerates the operations that are subject to that section's variance provision. These specific operations are the disposal of coal refuse and the related stream diversions or relocations. Requests for variances for other mining operations fall under the variance provisions of § 86.102(12). Section 86.102(12) covers activities listed under the term ''surface mining operations'' as defined in § 86.101. A reference to § 86.102(12) was included in the proposed rulemaking in § 90.49(b). In the final-form regulation, § 90.49(c)(1) has been modified to include the phrase ''as a result of the variance.'' This new language was added for clarification and to ensure consistency with the statute.
Two comments were received regarding the variance criteria under § 90.49(c). The commentators recommended that language regarding stream relocations and diversions be inserted. The language would then more closely track the statutory language.
The Board agrees with this recommendation, and the language has been revised as suggested.
One commentator requested that § 90.49(a) and (c) be modified to only apply to ''perennial or intermittent streams.'' The commentator argued that the language would then be consistent with stream buffer zone provisions in §§ 86.101, 86.102 and the SMCRA.
The Board disagrees. Section 90.49 follows the statutory language of the CRDCA and will remain unchanged. Furthermore, the CRDCA buffer zone provision was amended after §§ 86.101 and 86.102 were promulgated and after the buffer zone provision of SMRCA, was enacted. Under the rules of statutory construction, the language of the CRDCA will control because it is later in time and more specific, applying only to coal refuse disposal.
One commentator argued that language should be included in § 90.49(c)(1) to explicitly state that adverse water quality impacts must be prevented downstream of the fill area, not within the reach of the stream contained within or diverted through the fill.
The Board recognizes that, as a practical matter, adverse impacts will be assessed downstream of the site's discharge. However, the regulatory language is consistent with the statutory language and will remain unchanged.
One comment addressed the need to include a reference to the Game Commission in § 90.49(c)(2)(ii). The commentator suggested that the regulation explicitly reference the Game Commission due to its obligations under the 34 Pa.C.S. (relating to the Game and Wildlife Code) to protect riparian and wetland areas.
The Board believes it is unnecessary to include the suggested reference. Section 90.49(c)(2)(ii) includes a reference to the Fish and Boat Commission because the Commission is explicitly mentioned in the statute. The Game Commission will be given an opportunity to review and comment on stream barrier variances. The existing technical guidance document covering stream barrier variances at coal refuse sites specifically directs the Department to provide the Game Commission with a copy of the variance application and to consider its comments.
One commentator suggested that § 90.49(c)(2)(ii) be revised to require the Department to consider ''timely'' information submitted by the Fish and Boat Commission.
The Board believes the revision is unnecessary. The Department's existing technical guidance document regarding stream buffer variances already limits the comment period to 30 days. Inclusion of the word ''timely,'' which is not a precise term, would not improve the regulation.
One commentator noted that the phrase ''coal refuse disposal operations other than coal refuse disposal,'' as used in § 90.49(b), was unclear.
The Board agrees. The phrase has been deleted and the subsection has been modified to clarify the subset of activities that are subject to the stream buffer zone provisions in § 86.102(12). Additionally, the term ''coal refuse disposal,'' which is part of the new language inserted in the final-form version of § 90.49(b), has been defined in § 90.1.
One commentator noted that it is unclear how an operator can make the demonstration, required by § 90.49(c)(1), that ''coal refuse disposal will not adversely affect water quality and quantity. . . .'' The commentator suggested that the final-form regulation include the criteria the Department will use to judge if an operator has made an adequate demonstration.
The Board believes the broad statutory language used in § 90.49(c)(1) is sufficient. The broad language allows Department technical staff the flexibility to consider site-specific factors when assessing stream buffer zone proposals and mitigation plans. Permits issued under the CRDCA are conditioned to maintain downstream uses.
Minor modifications were also made to § 90.40(a) and (c)(3) at final rulemaking for clarity.
§ 90.50. Groundwater and surface water protection systems.
One comment was received regarding § 90.50(c). The commentator questioned the meaning of the phrase ''other physical or chemical process.'' Additionally, the comment focused on the vagueness of the phrase ''particular attention.''
The Board agrees that the subsection needed to be improved. The final-form version of § 90.50(c) has been revised. The term ''particular attention'' has been deleted, and examples of processes that could potentially deteriorate groundwater and surface water protection systems have been included.
§ 90.116a. Hydrologic balance: water rights and replacement.
Language in § 90.116a was modified at final rulemaking to incorporate the newly defined terms in § 90.1, including ''operator'' and ''coal refuse disposal.''
§ 90.122. Coal refuse disposal.
Language was added at final rulemaking to address the MRAB's comments that the proposed language could be misinterpreted to require that all coal refuse be sheltered from precipitation during the operational life of the disposal area.
Subchapter E. Site Selection.
§ 90.201. Definitions.
One commentator recommended that the definition of ''search area'' under § 90.201 be modified to require that the delineated area be entirely within Commonwealth boundaries. The argument was made that an operator could intentionally exclude preferred sites in this Commonwealth by locating large portions of the search area in adjacent states.
The Board believes this change is unnecessary. The CRDCA does not limit the search area to this Commonwealth. The Department will have the final say on the configuration of the 25-mile search area. In circumstances where an applicant has designed the search area to deliberately exclude preferred sites, the Department will require the search area to be reconfigured.
One comment addressed the fact that the proposed definition of ''search area'' contained a substantive provision better suited for inclusion in § 90.202, relating to general requirements.
The Board decided to move the last sentence of the definition, which contains the substantive provision, to § 90.202(b).
One comment was received regarding the definition of ''preferred site'' under § 90.201. The commentator pointed out that the definition does not include specific criteria for determinations regarding preferred sites.
The Board finds that additional criteria are not needed in the regulation. The Department's existing technical guidance, titled ''Coal Refuse Disposal--Site Selection,'' contains criteria for identifying preferred sites. Considerations such as in-stream water quality, length of polluted stream segment and the percent of disturbed land in relation to the size of the watershed are addressed. While not absolutes, these criteria serve as a guide to operators and Department staff conducting ''preferred site'' assessments.
§ 90.202. General requirements.
Two comments were received regarding the proposed language in § 90.202(c)(2) limiting coal refuse disposal at sites ''likely to contain'' Federally listed threatened or endangered plants or animals. One commentator argued that restricting sites which are ''known to contain'' listed species is consistent with the CRDCA and fully complies with the Federal statutes and regulations, because consultation and concurrence are required where those species are known to exist, and where their continued existence may therefore be jeopardized. In contrast to the clear language of the CRDCA, the proposed language contains no standard for determining whether a site is ''likely to contain'' an endangered or threatened species. The second commentator pointed out that the ''likely to contain'' language is inconsistent with the enabling statute. Both commentators recommended that the ''likely to contain'' phrase be deleted.
The Board has determined there is no need to reference sites that are ''likely to contain'' threatened or endangered species in § 90.202(c)(2). The language regarding sites that are ''likely to contain'' threatened or endangered species was originally included to address a concern raised by OSM in regard to the Department's technical guidance on coal refuse disposal site selection. In response to a recent Department inquiry, OSM found that the requirement to consider sites that are likely to contain threatened or endangered species is not needed in § 90.202(c)(2) because the requirement currently exists in § 90.18. Accordingly, the ''likely to contain'' phrase has been deleted from § 90.202(c)(2).
One commentator suggested revising § 90.202(a) to restrict information gathered to make the required preferred site demonstration to ''reasonably available data.''
The Board did not adopt this recommendation. The proposed regulatory language follows the statutory language. The considerations regarding ''reasonably available data'' only come into play after the preferred site issue had been resolved under section 4.1(a) of the CRDCA.
One comment was received regarding the evaluation criteria concerning review of an alternate site versus an existing preferred site. The commentator points to the different criteria spelled out in §§ 90.202 and 90.204 as proof of an inconsistent approach to assessing alternate and preferred sites.
The Board disagrees with the underlying premise of the comment. The criteria reflected in the regulations is consistent with the statutory intent. Section 4.1 of the CRDCA requires certain criteria to be considered when evaluating preferred versus alternate sites. The criteria under § 90.202(a) reflects section 4.1(a) of the CRDCA and is to be used to evaluate an applicant's demonstration that an alternate site is more suitable than a preferred site. Section 90.204 is designed to reflect section 4.1(c) and (d) of the CRDCA, which addresses circumstances where an applicant is comparing various alternate sites. Section 90.204 comes into play when a preferred site does not exist within the search area or when the applicant has already made the demonstration, required under § 90.202(a), that an alternate site is more suitable. In the final-form rulemaking, the phrase ''using criteria in § 90.202(a)'' has been added for clarity in § 90.204(a)(1).
One commentator suggested deleting the phrase ''unless it is a preferred site'' from § 90.202(d). The commentator argues that the language allows the Department to minimize important environmental factors, such as exceptional value wetlands, wetlands and State listed threatened or endangered species for sites that meet the preferred site definition.
The Board did not accept this recommendation. Section 4.1(a) and (b) of the CRDCA explicitly address criteria for preferred sites. Section 4.1(b) of the CRDCA exempts preferred sites from the absolute exclusions listed under § 90.202(d). Regardless of the site's status as alternate or preferred, the regulations and CRDCA require that a site can only be approved when the adverse environmental impacts will not clearly outweigh the public benefits. Additionally, the wetland encroachment issues will be addressed during the permitting process, which requires a detailed site assessment following the site selection process.
A commentator noted that language in § 90.202(e) unnecessarily deviates from its statutory counterpart language.
To more closely track the statute, the Board has revised language in § 90.202(e).
One commentator pointed out that § 90.202(c)(2) appears to be inconsistent with section 4.1(b) of the CRDCA in that it allows the approval of coal refuse disposal on nonpreferred sites known to contain the Federally listed species when the Department concludes and the USFWS concurs that the proposed use of the site would be unlikely to adversely affect these species. The commentator noted that section 4.1(b) of the CRDCA provides an absolute prohibition for using nonpreferred sites for refuse disposal on sites known to contain Federal threatened or endangered plants or animals or State threatened or endangered animals. Additionally, the commentator observed that § 90.202(c)(2) does not contain the complete text of the Department's technical guidance, titled ''Coal Refuse Disposal--Site Selection,'' regarding restrictions at sites containing Federally listed threatened or endangered species.
The Board concurs with the comments. Section 90.202(c)(2) was inadvertently misplaced and has been moved to § 90.202(e)(7). The missing portion of the text in the technical guidance language, ''. . . or result in the take of Federally listed threatened or endangered species in violation of section 9 of the Endangered Species Act of 1973,'' has been added to the new § 90.202(e)(7).
One commentator pointed out that § 90.202(d)(3) is inconsistent with section 4.1(b) of the CRDCA. The paragraph refers to State threatened or endangered plants; the statute does not.
The Board concurs with the comment. The reference to State threatened or endangered plants has been deleted from § 90.202(e)(3) in the final rulemaking.
Section 90.202(b) has been expanded due to the inclusion of language moved from the definition of the term ''search area'' in § 90.201.
§ 90.203. Proposing a preferred site.
One comment was received indicating that § 90.203 should be deleted since it reiterates the requirements in § 90.202.
The Board disagrees that § 90.203 simply reiterates the requirements of § 90.202. Section 90.203 implements section 4.1(a)(5) of the CRDCA. Section 90.202 implements section 4.1(c) and (d) of the CRDCA.
§ 90.205. Alternatives analysis.
One commentator argued that § 90.205, as written, circumvents the alternatives analysis required by Chapter 105 (relating to dam safety and waterway management).
The commentator did not make a recommendation for changing the wording of § 90.205. Regardless, the Board sees little room for change. Section 90.205 tracks the exact language of section 4.1(e) of the statute. The Act 114 revisions to the CRDCA do address Chapter 105 requirements. Section 4.1(e) of the CRDCA explicitly states that the alternatives analysis outlined under section 4.1 of the CRDCA satisfies the requirement for an alternatives analysis under the Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27).
Subchapter F. Coal Refuse Disposal Activities on Areas with Preexisting Pollutional Discharges
§ 90.302. Definitions.
One commentator recommended simply cross referencing the definitions of ''actual improvement,'' ''coal refuse disposal activities'' and ''pollution abatement area'' since they are taken directly from the statute.
As stated previously, the Board believes that repeating statutory definitions in the regulations increases the readability and clarity of the regulations. The practice serves to make the regulation more user-friendly by making definitions of important terms readily available to the reader.
§ 90.303. Applicability.
Two commentators pointed out that § 90.303(a) differs from the statutory language for no clear reason. They recommended revising the subsection to include the statutory language.
The Board agrees that the language should mirror the statute where possible. Section 90.303(a) has been revised as suggested.
§ 90.304. Application for authorization.
One commentator questioned the criteria the Department will use to determine the ''other water quality parameters. . .'' outlined under § 90.304(a)(2)(ii).
The Board does not feel any revision is needed. Additional water quality parameters may need to be assessed if warranted based on site-specific knowledge regarding historical uses or problems at a given mine site. The operator will be made aware of additional monitoring requirements during the review of the permit application.
§ 90.306. Operational requirements.
One comment was received indicating that § 90.306(a)(4) should be revised to delete the requirement that the operator provide a notarized statement regarding the progress of the abatement plan.
The Board concurs. The requirement to submit a notarized statement has been deleted.
§ 90.309. Criteria and schedule for release of bonds on pollution abatement areas.
One comment was received regarding the inclusion of the term ''planting'' in both § 90.309(a)(2) and (b)(1).
The Board has determined that the term should be limited to § 90.309(b)(1). The term was inadvertently included in § 90.309(a)(2) and has been deleted in the final-form version.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations. The final-form regulations should result in substantial benefits to the Commonwealth. Although costs and benefits cannot be calculated with precision, the Department has developed some estimates that provide a means of gauging the significance of these regulations. The benefits and costs are as follows:
Benefits
This rulemaking benefits the regulated community, Department staff and the public by providing a more detailed outline of the requirements under Act 114. This clarification of the statute directly benefits approximately 26 coal refuse disposal site operators who are potential applicants for coal refuse disposal permits.
The site selection provisions of the regulations are designed to steer operators who are evaluating prospective coal refuse disposal sites to areas previously disturbed by mining. The regulations are also designed to minimize the total number of disposal sites. The limited number of sites serves to minimize the likelihood of citizens being exposed to the effects of coal refuse disposal. To make the use of sites with preexisting discharges more palatable to operators, Act 114 included provisions for modified discharge limits and alternative reclamation standards. Unlike the other sections of Act 114, these provisions were not self-implementing. They are contingent on this rulemaking. This final-form rulemaking will therefore fulfill the intent of Act 114.
Sites reclaimed by operators as a result of Subchapter F incentives will reduce the Commonwealth's abandoned mine reclamation obligation. Prior to the Act 114 amendment to the CRDCA, operators were exposed to potentially unlimited liability for treatment of preexisting discharges that would remain after coal refuse disposal was complete. This potential liability has discouraged operators from reentering sites and thus limited the amount of operator reclamation. The regulations will result in a reduction of water pollution from areas that have been previously mined, will lead to additional reclamation of areas that have been previously mined, and will benefit the Commonwealth and landowners by promoting the reuse of previously disturbed areas as opposed to virgin sites.
The site-selection provisions of Subchapter E in conjunction with surface and groundwater protection systems, will result in improved water quality and disposal of coal refuse at the most environmentally suitable site available.
The experimental practice provisions outlined in Subchapter G will enable operators to develop more cost effective coal refuse disposal methods.
Compliance Costs
Subchapter F will impose additional site characterization costs. If operators choose to use sites with preexisting discharges, they will bear slightly higher costs in preparing permit applications than they would incur for other permit applications. Costs will be related to the development of abatement plans, as well as implementation of the abatement plans and certification of completion of those plans. Costs will vary based on the number of discharges and the degree of pollution at the site as well as the technology needed to achieve a predicted improvement. Costs for characterization of discharge quality and quantity are estimated to be approximately $500 per discharge. These additional costs will only come into play in cases where operators perceive that the economic benefits for disposing of coal refuse in an area previously affected by mining outweigh the additional costs required to characterize the preexisting discharges.
Subchapter E provisions mirror the self-implementing provisions of Act 114. The regulated industry has been complying with the requirements since Act 114 became effective in 1995. The additional up-front site characterization and alternatives analysis required by Act 114 and proposed Subchapter E can result in significant costs to the operator ($50,000--$70,000 per site).
Act 114 and the final-form regulations require coal refuse disposal sites to incorporate systems to prevent adverse impacts to surface and groundwater and to prevent precipitation from contacting the coal refuse. The regulated community has been following these self-implementing Act 114 provisions since 1995. The final-form regulations do not add new requirements beyond those in the statute. The final-form regulations covering the types of systems to be installed is not prescriptive; therefore, the costs related to design and construction can vary considerably depending on the systems proposed. However, the costs of designing and installing systems at large coal refuse disposal sites may be substantial. The economic impact is partly mitigated due to the limited number of anticipated sites. Additionally, since the required systems will reduce groundwater and surface water recharge to the coal refuse pile, the costs will be offset by the long-term savings realized due to reduced water treatment costs.
Compliance Assistance Plan
There is no compliance assistance plan specifically designed to assist coal refuse disposal applicants. The limited number of expected applications allows the Department the opportunity to provide customized technical assistance on each application.
Paperwork Requirements
Act 114 was largely self-implementing; therefore, the reporting and recordkeeping have been absorbed into the regulatory program over the past 5 years. Subchapter F imposes no additional paperwork because it merely creates an option for operators to disturb areas that contain preexisting pollutional discharges. If an operator exercises this option, Subchapter F does require increased background water quality information that is not ordinarily required in permit applications. This information is necessary to ensure accurate information about the quantity and quality of preexisting pollutional discharges from the site, so that any changes in background data caused by the proposed activities may be more completely and accurately understood. Subchapter G will require an applicant to submit a substantial amount of additional paperwork. The additional paperwork will only apply to sites where an operator chooses to propose experimental practices.
G. Sunset Review
These final-form 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.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on May 31, 2000, the Department submitted a copy of the proposed rulemaking to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees.
In compliance with section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of comments as well as other documentation. In preparing these final-form regulations, the Department has considered the comments received from IRRC and the public. The Committee did not submit comments.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), these final-form regulations were deemed approved by the House Environmental Resources and Energy Committee and by the Senate Environmental Resources and Energy Committee on May 29, 2001. IRRC met on June 7, 2001, and approved the final-form regulations in accordance with section 5.1(e) of the Regulatory Review Act.
I. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated there under in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These final-form regulations do not enlarge the proposal published at 30 Pa.B. 3053.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in section C of this Preamble.
J. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 88 and 90, are amended by amending §§ 88.281, 88.310, 88.332, 90.1, 90.12, 90.13, 90.34, 90.45, 90.101, 90.122 and 90.167; and by adding §§ 90.5, 90.49, 90.50, 90.116a, 90.201--90.207, 90.301--90.309 and 90.401 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
Fiscal Note: Fiscal Note 7-352 remains valid for the final adoption of the subject regulations.
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 31 Pa.B. 3370 (June 23, 2001).)
DAVID E. HESS,
ChairpersonAnnex A TITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION Subpart C. PROTECTION OF NATURAL RESOURCES ARTICLE I. LAND RESOURCES CHAPTER 88. ANTHRACITE COAL § 88.281. Requirements.
A person who conducts coal refuse disposal activities shall comply with the performance standards and design requirements of this subchapter, §§ 90.5, 90.49, 90.50 and Chapter 90, Subchapters E--G.
(1) Disposal of coal refuse in an active surface mine shall comply with the performance standards in Subchapter B (relating to surface anthracite coal mines: minimum environmental protection performance standards) and § 88.315 (relating to coal refuse disposal: active surface mines).
(2) Disposal of coal refuse in an active bank removal operation shall comply with the performance standards of Subchapter C (relating to anthracite bank removal and reclamation: minimum environmental protection performance standards).
(3) Disposal of coal refuse in an abandoned or active underground coal mine shall comply with the performance standards in Subchapter F (relating to anthracite underground mines).
§ 88.310. Coal refuse disposal: general requirements.
(a) Coal refuse shall be hauled or conveyed to and placed in designated disposal areas authorized for that purpose. The refuse shall be placed in a controlled manner to ensure the following:
(1) The land mass designated as the disposal area is suitable for reclamation and revegetation compatible with the natural surroundings.
(2) Stability of the disposal area.
(3) Leachate and surface runoff from the disposal area will not degrade surface waters or groundwaters or exceed the established effluent limitations.
(b) The disposal area shall be designed using recognized professional standards and approved by the Department. The design shall be certified by a registered professional engineer.
(c) Trees, grasses, shrubs and other organic materials shall be removed for a distance of 50 feet from the current disposal area concurrent with the placement of refuse.
(d) Slope protection shall be provided to minimize surface erosion at the site. The disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.
(e) The coal refuse to be placed in the fill shall be hauled or conveyed and placed in horizontal lifts in a controlled manner, concurrently compacted as necessary to ensure mass stability and prevent mass movement, covered and graded to allow surface and subsurface drainage to be compatible with the natural surroundings, and ensure a long-term static safety factor of 1.5 and seismic safety factor of 1.2.
(f) The final configuration of the disposal shall be suitable for the approved postmining land uses.
(g) Terraces may be utilized to control erosion and enhance stability if approved by the Department.
(h) If the disposal area contains springs, natural or manmade water-courses or wet-weather seeps, an underdrain system consisting of durable rock shall be constructed from the wet areas in a manner that prevents infiltration of the water into the spoil material. The underdrain system shall be designed and constructed using standard geotechnical engineering methods.
(i) Coal refuse may be returned to underground mine workings, but only in accordance with a disposal program approved by the Department and the Mine Safety and Health Administration.
(j) The system to prevent adverse impacts to the surface water and groundwater shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit and shall function to prevent adverse impacts to surface water and groundwater.
(k) The system to prevent precipitation from coming in contact with the coal refuse shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles and cross-sections approved in the permit and shall function to prevent precipitation from contacting the coal refuse.
(1) The system shall be installed as phases of the disposal area reach capacity, as specified in the permit, when the operation temporarily ceases for a period in excess of 90 days (unless the Department approves a longer period, not to exceed 1 year) or when the operation permanently ceases.
(2) The system shall be designed to allow for revegetation of the site in accordance with the standard of success under § 88.330 (relating to revegetation: standards for successful revegetation) and for prevention of erosion.
§ 88.332. Cessation of operations: temporary.
(a) As soon as it is known that the operation will temporarily cease for more than 30 days, the operator shall submit a notice of intention, in writing, to temporarily cease the operation. The notice shall include a statement of the exact number of acres which will have been affected in the permit area, the extent and kind of reclamation of those areas, and identification of the backfilling, regrading, revegetation, monitoring and water treatment activities that will continue during the temporary cessation. The system for preventing precipitation from contacting the coal refuse shall be installed when the temporary cessation exceeds 90 days. The Department may approve a longer period, not to exceed 1 year, under subsection (b).
(b) Temporary cessation of an operation may not exceed 90 days unless the Department approves a longer period for reasons of seasonal shutdown or labor strike.
(c) Temporary cessation does not relieve the operator of the obligation to comply with any provisions of the permit.
[Continued on next Web Page]
[Continued from previous Web Page] CHAPTER 90. COAL REFUSE DISPOSAL Subchapter A. GENERAL PERMIT AND APPLICATION REQUIREMENTS FOR COAL REFUSE DISPOSAL § 90.1. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
* * * * * Coal refuse disposal--The storage, placement or disposal of coal refuse. The term includes engineered features integral to the placement of the coal refuse including relocations or diversions of stream segments contained within the proposed fill area and the construction of required systems to prevent adverse impacts to surface water and groundwater and to prevent precipitation from contacting the coal refuse.
* * * * * Operator--A person operating a coal refuse disposal area, or part thereof.
* * * * * Public recreational impoundment--A closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water and which is owned, rented or leased by the Federal government, the Commonwealth or a political subdivision of this Commonwealth and which is used for swimming, boating, water skiing, hunting, fishing, skating or other similar activities.
* * * * * § 90.5. Site selection and permitting.
(a) Prior to applying for a permit to conduct coal refuse disposal activities, the applicant shall comply with Subchapter E (relating to site selection). The Department's technical guidance document Number 563-2113-660, titled Coal Refuse Disposal--Site Selection, shall be used as guidance for selecting a coal refuse disposal site.
(b) After the Department has approved a site in accordance with Subchapter E, the applicant may apply for a permit for coal refuse disposal activities in accordance with Chapters 86 and 88 (relating to surface and underground coal mining: general; and anthracite coal) and this chapter.
§ 90.12. Geology.
(a) The application shall include a description of the area and structural geology within the proposed permit and adjacent area, including the lithology of the strata that influence the occurrence, availability, movement and quality of groundwater that may be affected by the coal refuse disposal. For lands within the proposed permit and adjacent areas, the applicant shall provide a description of the geology with complementing maps and cross sections and the results of test borings. The description shall include the strata down to and including any aquifer that may be affected. At a minimum, the description shall include:
(1) The location and quality of subsurface water.
(2) The depth, lithology and structure of near-surface bedrock.
(3) The location, identification and status of mining and coal refuse disposal operations within or adjacent to the proposed permit area.
(4) A description of any glacial, alluvial or colluvial deposits or other unconsolidated deposits that are present within or beneath the proposed permit area, including their thickness and location.
(5) A description of any mine workings that are present beneath the proposed permit area.
(6) The attitude and characteristics of joints, cleats, fracture zones and faults within the permit and adjacent areas.
(7) The location and identification of all coal seam croplines within the permit area.
(8) A description of the physical characteristics of soils within the permit area.
(9) A description of aquifers that are present beneath the proposed permit area.
(b) Maps, cross-sections and geologic descriptions required by this section shall be prepared and certified by a qualified registered professional geologist.
§ 90.13. Groundwater information.
The application shall contain a description of the premining or baseline groundwater hydrology of the proposed permit and adjacent area, including the following:
(1) The results of a groundwater inventory of existing wells, springs and other valuable groundwater resources, providing information on location, quality, quantity, depth to water and usage of the groundwater for the proposed permit and potentially impacted offsite areas. Information on water availability and occurrence, and alternate water supplies shall be emphasized and water quality information relating to suitability for existing predisposal use shall be provided. At a minimum, water quality descriptions shall include total dissolved solids or specific conductance corrected to 25°C, pH, total iron, total manganese, alkalinity, acidity and sulfates.
(2) Other information on the baseline hydrogeologic properties of the groundwater system shall be included with the application. The Department may require information on indicator parameters such as pumping test, lithologic and piezometer data or that other appropriate information be provided. The application shall include a description of the groundwater flow system as it relates to the design and operation of the proposed groundwater and surface water protection system as described in § 90.50 (relating to design criteria: groundwater and surface water protection system).
§ 90.34. Reclamation: postdisposal land use.
(a) An application shall contain a description of the proposed land use, following reclamation, of the lands to be affected within the proposed permit area by coal refuse disposal activities, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses, and the relationship of the proposed use to existing land use policies and plans. This description shall explain the following:
(1) How the proposed postdisposal land use is to be achieved, and the necessary support activities which may be needed to achieve the proposed land use.
(2) The detailed management plan to be implemented when pastureland is the postdisposal land use.
(3) Materials needed for approval of the alternative use under § 90.166 (relating to postdisposal land use).
(4) The consideration given to making all of the proposed coal refuse disposal activities consistent with surface owner plans and applicable Commonwealth and local land use plans and programs.
(b) If an alternate land use is proposed, the description shall be accompanied by a copy of the comments concerning the proposed use from the legal or equitable owner of record of the surface areas to be affected by coal refuse disposal activities within the proposed permit area, and from the Commonwealth and local government agencies which would have to initiate, implement, approve or authorize the proposed use of the land following reclamation.
§ 90.45. Prime farmland.
A person who conducts, or intends to conduct, coal refuse disposal activities on prime farmlands historically used for cropland, in accordance with Subchapter E (relating to site selection), shall submit a plan, as part of the permit application, for the disposal and restoration of the land. The plan shall contain, at a minimum:
(1) The proposed method and type of equipment to be used for removal, storage and replacement of the soil in accordance with §§ 90.161--90.165.
(2) The proposed measures to be taken during soil reconstruction to prevent excessive compaction and achieve soil bulk densities which will result in the restored area being returned to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management.
(3) The location of areas to be used for the separate stockpiling of soil and plans for soil stabilization before redistribution.
(4) Documentation, if applicable, such as agricultural school studies or other scientific data from comparable areas, that supports the use of other suitable material, instead of the B or C soil horizon, to obtain on the restored area equivalent or higher levels of yield as nondisposal prime farmlands in the surrounding area under equivalent levels of management.
(5) Plans for seeding or cropping the final graded disturbed land and the conservation practices to be used to adequately control erosion and sedimentation and restoration of an adequate soil moisture regime, during the period from completion of regrading until release of the performance bond or equivalent guarantee under Chapter 86, Subchapter E (relating to coal exploration). Proper adjustments for seasons shall be proposed so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions.
(6) Available agricultural school studies or other scientific data for areas with comparable soils, climate and management--including water management--that demonstrate that the proposed method of reclamation will achieve, within a reasonable time, equivalent or higher levels of yield after mining as existed before mining.
(7) A soil survey with description of soil mapping units and representative soil profile under § 90.22 (relating to prime farmland investigation). The soil profile description shall include, but not be limited to, soil horizon depths, pH and range of soil densities for each prime farmland soil unit within the proposed permit area. The Department may require the applicant to provide information on other physical and chemical soil properties as needed to make a determination that the operator has the technological capability to restore the prime farmland within the permit area to the soil reconstruction standards of §§ 90.161--90.165.
§ 90.49. Stream buffer zone variance.
(a) Stream buffer zone restriction. Coal refuse disposal may not occur within 100 feet (30.48 meters) of the bank of a stream. The Department may grant a variance for disposal of coal refuse under subsection (c) if consistent with Subchapter E (relating to site selection).
(b) Compliance required. Surface mining operations supporting coal refuse disposal shall comply with § 86.102(12) (relating to areas where mining is prohibited or limited).
(c) Variance. The Department may grant a variance from the 100-foot (30.48-meter) stream buffer zone to dispose of coal refuse and to relocate or divert streams in the 100-foot (30.48-meter) stream buffer zone. The stream buffer zone is the area within 100 feet (30.48 meters) measured horizontally from the bank of any stream.
(1) Stream buffer zone variances will only be granted if the operator demonstrates to the satisfaction of the Department that, as a result of the variance, coal refuse disposal will not adversely affect water quality and quantity, or other environmental resources of the stream and will not cause or contribute to the violation of applicable State or Federal water quality standards.
(2) Prior to granting a variance, the operator shall be required to give public notice of the application in two newspapers of general circulation in the area once a week for 2 successive weeks.
(i) If a person files an exception to the proposed variance within 20 days of the last publication of the notice, the Department will conduct a public hearing with respect to the application within 30 days of receipt of the exception.
(ii) The Department will also consider information or comments submitted by the Fish and Boat Commission prior to taking action on a variance request.
(3) The variance will be issued as a written order specifying the methods and techniques that shall be employed to prevent or mitigate adverse impacts. Mitigation can include, but is not limited to, compensatory restoration and enhancements of nearby streams or stream segments.
§ 90.50. Design criteria: groundwater and surface water protection system.
(a) The application shall include a description of the system that will be installed to prevent adverse impacts to groundwater and surface water. The description shall include maps, plans and other information necessary to evaluate the design of the system.
(b) The application shall include a description of the system that will be installed to prevent precipitation from coming into contact with the coal refuse. The description shall include maps, plans and other information necessary to evaluate the design of the system. The coal refuse disposal operation shall be designed in phases to minimize the amount of time the entire coal refuse area is exposed to precipitation prior to the installation of the system to prevent precipitation from contacting the coal refuse. The application shall describe the design of the system for preventing precipitation from contacting coal refuse and how the system will be installed in accordance with the following:
(1) During routine coal refuse disposal as phases of the coal refuse disposal area reach capacity.
(2) During periods of temporary cessation as directed under § 90.167(d) (relating to cessation of operations: temporary).
(3) When the operation permanently ceases.
(c) The Department's technical guidance Document Number 563-2112-656, titled Liners--Impoundments, Stockpiles, and Coal Refuse Disposal Areas, shall be used as guidance for designing coal refuse disposal sites incorporating earthen, admixed or synthetic liners or caps for preventing adverse impacts to groundwater and surface water and for preventing precipitation from contacting coal refuse.
(d) The application shall include a description of the measures to be taken to ensure the long-term functionality of the systems described in subsections (a) and (b). The description shall address the site's susceptibility to mine subsidence and the potential impacts of mine subsidence on the systems described in subsections (a) and (b). The description shall also address the potential for deterioration of components of the systems described in subsections (a) and (b) due to other physical or chemical processes including but not limited to attack from sulfate-laden or acidic groundwater and/or leachate.
§ 90.101. Hydrologic balance: general requirements.
(a) Coal refuse disposal activities shall be planned and conducted to minimize disturbances to the prevailing hydrologic balance in the permit and adjacent areas and to prevent material damage to the hydrologic balance outside the permit area. The Department may require additional preventive, remedial or monitoring measures to assure that material damage to the hydrologic balance outside the permit area is prevented.
(b) Coal refuse disposal activities shall be planned and conducted to prevent pollution of groundwater and surface water and prevent, to the maximum extent possible, changes to the water quantity, depth to groundwater and location of surface water drainage channels so that the approved postdisposal land use of the permit is not adversely affected.
(c) The treatment requirements and effluent limitations established under § 90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices) may not be violated.
(d) Operations shall be conducted to prevent water pollution and, when necessary, treatment methods shall be used.
(e) A person who conducts coal refuse disposal activities shall conduct the disposal and reclamation operation to prevent water pollution and, when necessary, operate and maintain the necessary water treatment facilities until applicable treatment requirements and effluent limitations established under § 90.102 are achieved and maintained.
§ 90.116a. Hydrologic balance: water rights and replacement.
An operator who conducts coal refuse disposal and adversely affects a water supply by contamination, pollu-tion, diminution or interruption shall comply with § 87.119 (relating to water rights and replacement).
§ 90.122. Coal refuse disposal.
(a) Coal refuse shall be transported and placed in designated disposal areas approved by the Department for this purpose. These areas shall be within the permit area. The coal refuse disposal area shall be designed, constructed and maintained to ensure:
(1) The leachate and surface runoff from the permit area will not degrade surface water or groundwater or exceed the effluent limitations of § 90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).
(2) Prevention of combustion.
(3) Prevention of public health hazards.
(4) Stability of the fill.
(5) The land mass designated as the coal refuse disposal area is suitable for reclamation and revegetation compatible with the natural surroundings.
(b) The fill shall be designed using recognized professional standards, certified by a qualified registered professional engineer, and approved by the Department.
(c) The foundation and abutment of the fill shall be stable under all conditions of construction and operation. Sufficient foundation investigations and laboratory testing of foundation materials and coal refuse shall be performed to determine the design requirements for stability of the facility. Analyses of foundation conditions shall include the effect of underground mine workings, if any, upon the stability of the structure.
(d) The coal refuse disposal fill shall be designed to attain a minimum long-term static factor of safety of 1.5 and a minimum seismic factor of safety of 1.2, based upon data obtained from subsurface exploration, geotechnical testing, foundation design, fill design and accepted engineering analyses.
(e) When the average slope of coal refuse disposal area exceeds 1v:2.8h-36%, or lesser slopes as may be designated by the Department based on local conditions, key way cuts, or excavation into stable bedrock or bedrock toe buttresses shall be constructed to stabilize the fill. When the toe of the fill rests on a downslope, stability analysis shall be performed in accordance with § 90.39 (relating to ponds, impoundments, banks, dams, embankments, piles and fills) to determine the size of rock toe buttresses and key way cuts.
(f) If the disposal area contains springs, natural or manmade watercourses, or wet-weather seeps, the Department may approve an underdrain/subdrainage system, consisting of durable rock or other materials, designed and placed in a manner that prevents infiltration of the water into the fill material and ensures continued free drainage from the wet areas.
(g) The disposal area shall be provided with a system to prevent adverse impacts to the surface water and groundwater. The system shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit and shall function to prevent adverse impacts to surface water and groundwater.
(h) When a phase of the coal refuse disposal area reaches capacity, the operator shall install a system to prevent precipitation from coming in contact with the coal refuse in the completed phase.
(1) The system shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit.
(2) During normal coal refuse disposal, the system is not required to prevent precipitation from coming in contact with the coal refuse being placed in phases of the operation that have not reached capacity.
(3) The system shall be designed to allow for revegetation of the site in accordance with the standard of success under § 90.159 (relating to revegetation: standards for successful revegetation) and for the prevention of erosion.
(4) If the operator temporarily ceases operation of the coal refuse disposal area for a period in excess of 90 days (unless the Department, for reasons of labor strike or business necessity, approves a longer period not to exceed 1 year) or when the operation permanently ceases, the operator shall install the system for preventing precipitation from contacting the coal refuse.
* * * * * § 90.167. Cessation of operations: temporary.
(a) As soon as it is known that the operation will temporarily cease for more than 30 days, the operator shall submit a notice of intention, in writing, to temporarily cease the operation. The notice shall include a statement of the exact number of acres that will have been affected in the permit area, the extent and kind of reclamation of those areas, and identification of the disposal, regrading, revegetation, monitoring and water treatment activities which will continue during the temporary cessation.
(b) Temporary cessation of an operation may not exceed 90 days unless the Department approves a longer period for reasons of seasonal shutdown or labor strike.
(c) Temporary cessation does not relieve the operator of the obligation to comply with any provisions of the permit.
(d) The operator shall install the system for preventing precipitation from contacting the coal refuse when the temporary cessation exceeds 90 days. The Department may approve a longer period, not to exceed 1 year, for reasons of a labor strike or business necessity.
Subchapter E. SITE SELECTION Sec.
90.201. Definitions. 90.202. General requirements. 90.203. Proposing a preferred site. 90.204. Proposing an alternate site. 90.205. Alternatives analysis. 90.206. Disapproval of a proposed site. 90.207. Approval of a selected site. § 90.201. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Preferred site--A watershed polluted by acid mine drainage; a watershed containing an unreclaimed surface mine but which has no mining discharge; a watershed containing an unreclaimed surface mine with discharges that could be improved by the proposed coal refuse disposal operation; unreclaimed coal refuse disposal piles that could be improved by the proposed coal refuse disposal operation; or other unreclaimed areas previously affected by mining activities.
Search area--The geographic area within a 1-mile radius of an existing coal preparation facility or the 25-square mile geographic area encompassing a proposed coal preparation facility.
Selected site--A location selected by the applicant and approved by the Department under this subchapter for which the applicant can then apply for a permit to conduct coal refuse disposal activities.
§ 90.202. General requirements.
(a) A preferred site shall be used for coal refuse disposal unless the applicant demonstrates to the Department that an alternate site is more suitable based upon engineering, geology, economics, transportation systems, and social factors and is not adverse to the public interest.
(b) The applicant is required to determine whether the search area contains a preferred site.
(1) For a new coal refuse disposal area that will support an existing coal preparation facility, the applicant shall examine the geographic area within a 1-mile radius of the existing coal preparation facility.
(2) For a proposed coal refuse disposal area that will support a proposed coal preparation facility, the applicant shall examine a 25-square mile geographic area encompassing the proposed coal preparation facility. In defining the 25-square mile area, consideration shall be given to environmental, technical, transportation, economic and social factors where applicable.
(c) If there are no preferred sites located within the search area, the applicant shall conduct a comparative analysis of the potential coal refuse disposal sites in accordance with § 90.204(b) (relating to proposing an alternate site).
(d) The Department will not approve a site proposed by the applicant for coal refuse disposal activities when the Department finds that the adverse environmental impacts of using the site for coal refuse disposal activities would clearly outweigh the public benefits.
(e) Except on preferred sites, the Department will not approve coal refuse disposal on or within any of the following areas:
(1) Prime farmlands.
(2) An exceptional value watershed as defined under Chapter 93 (relating to water quality standards).
(3) Sites known to contain threatened or endangered animals listed exclusively under the Commonwealth's protection programs.
(4) An area that is hydrologically connected to and contributes at least 5% of the drainage to wetlands designated as exceptional value under Chapter 105 (relating to dam safety and waterway management) unless a larger percentage contribution is authorized by the Department after consultation with the Fish and Boat Commission.
(5) A watershed less than 4 square miles in area upstream of the intake of a public water supply.
(6) A watershed less than 4 square miles in area upstream of the upstream limit of a public recreational impoundment.
(7) Sites known to contain Federally listed threatened or endangered plants or animals. At preferred sites known to contain Federally listed threatened or endangered species, approval will be granted only when the Department concludes and the United States Fish and Wildlife Service concurs that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the take of Federally listed threatened or endangered species in violation of section 9 of the Endangered Species Act of 1973 (16 U.S.C.A. § 1538).
(f) As part of the site selection process, an applicant may request approval for more than one site. The Department will evaluate each site proposed for coal refuse disposal and, if the Department finds that a proposed site meets the requirements of this subchapter, it will designate it as an approved site. The applicant will then have the option of choosing a selected site from among the approved sites and submitting an application for coal refuse disposal for that site.
§ 90.203. Proposing a preferred site.
If the applicant proposes to use a preferred site, the Department will approve the proposed site subject to § 90.202(c) (relating to general requirements) provided the applicant demonstrates that the attendant adverse environmental impacts will not clearly outweigh the public benefits.
§ 90.204. Proposing an alternate site.
(a) Where a preferred site exists within the search area, but the applicant proposes an alternate site, the applicant shall:
(1) Demonstrate that the alternate site is more suitable, using criteria in § 90.202(a) (relating to general requirements), than all preferred sites within the search area.
(2) Identify other alternate sites considered and provide the basis for the rejection of these sites.
(3) Based on reasonably available data, demonstrate that it is the most suitable site based on environmental, economic, technical, transportation and social factors.
(b) If a preferred site does not exist within the search area, the applicant shall:
(1) Identify all the sites considered within the search area and provide the basis for their consideration.
(2) Provide the basis for the rejection of considered sites.
(3) Based on reasonably available data, demonstrate to the Department that the proposed site is the most suitable based on environmental, economic, technical, transportation and social factors.
§ 90.205. Alternatives analysis.
The alternatives analysis required by §§ 90.202(b) and 90.204 (relating to general requirements; and proposing an alternate site) satisfies the requirement for an alternatives analysis under the Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27) and regulations promulgated thereunder. See Chapter 105 (relating to dam safety and waterway management).
§ 90.206. Disapproval of a proposed site.
If the Department disapproves the applicant's proposed site, the applicant may submit a new proposal supporting the selection of another site located either within or outside of the search area.
§ 90.207. Approval of a selected site.
Department approval of a selected site does not indicate the Department will approve an application for coal refuse disposal activities for the selected site.
Subchapter F. COAL REFUSE DISPOSAL ACTIVITIES ON AREAS WITH PREEXISTING POLLUTIONAL DISCHARGES Sec.
90.301. Scope. 90.302. Definitions. 90.303. Applicability. 90.304. Application for authorization. 90.305. Application approval or denial. 90.306. Operational requirements. 90.307. Treatment of discharges. 90.308. Request for bond release. 90.309. Criteria and schedule for release of bonds on pollution abatement areas. § 90.301. Scope.
(a) This subchapter specifies procedures and rules applicable to those who seek authorization to engage in coal refuse disposal activities on an area on which there are preexisting pollutional discharges resulting from previous mining and describes the terms and conditions under which the Department may release bonds to operators who have received authorization.
(b) Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A--D apply to authorizations to mine areas with preexisting pollutional discharges except as specifically modified by this subchapter.
§ 90.302. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Abatement plan--Any individual technique or combination of techniques, the implementation of which will result in reduction of the base line pollution load. Abatement techniques include, but are not limited to: Addition of alkaline material, special plans for managing toxic and acid-forming material, regrading, revegetation and relocating coal refuse to a coal refuse disposal area that includes systems to prevent adverse impacts to surface and groundwater and to prevent precipitation from contacting the coal refuse.
Actual improvement--The reduction of the baseline pollution load resulting from the implementation of the approved abatement plan; except that any reduction of the baseline pollution load achieved by water treatment may not be considered as actual improvement provided that treatment approved by the Department of the coal refuse before, during or after placement in the coal refuse disposal area will not be considered to be water treatment.
Baseline pollution load--The characterization of the pollutional material being discharged from or on the pollution abatement area, described in terms of mass discharge for each parameter deemed relevant by the Department, including seasonal variations and variations in response to precipitation events. The Department will establish in each authorization the specific parameters it deems relevant for the baseline pollution load, including, at a minimum, iron and acid loadings.
Best professional judgment--The highest quality technical opinion forming the basis for the terms and conditions of the treatment level required after consideration of all reasonably available and pertinent data. The treatment levels shall be established by the Department under sections 301 and 402 of the Federal Water Pollution Control Act (33 U.S.C.A. §§ 1311 and 1342).
Best technology--Measures and practices which will abate or ameliorate, to the maximum extent possible, discharges from or on the pollution abatement area. These measures include engineering, geochemical or other applicable practices.
Coal refuse disposal activities--The storage, dumping or disposal of any waste coal, rock, shale, slurry, culm, gob, boney, slate, clay, underground development wastes, coal processing wastes, excess soil and related materials, associated with or near a coal seam, that are either brought above ground or otherwise removed from a coal mine in the process of mining coal or are separated from coal during the cleaning or preparation operations. The term does not include the removal or storage of overburden from surface mining activities.
Excess soil and related material--Rock, clay or other material located immediately above or below a coal seam and which are extracted from a coal mine during the process of mining coal. The term does not include topsoil or subsoil.
Pollution abatement area--The part of the permit area that is causing or contributing to the baseline pollution load. The term includes adjacent and nearby areas that must be affected to bring about significant improvements of the baseline pollution load and may include the immediate locations of the discharges.
§ 90.303. Applicability.
(a) Authorization may be granted under this subchapter when the authorization is part of the following:
(1) A permit issued after February 6, 1995, but only if the authorization request is made during one of the following periods:
(i) At the time of the submittal of the permit application for the coal refuse disposal activities, including the proposed pollution abatement area.
(ii) Prior to a Department decision to issue or deny that permit.
(2) A permit revision under § 86.52 (relating to permit revisions), but only if the operator affirmatively demonstrates to the satisfaction of the Department that:
(i) The operator has discovered pollutional discharges within the permit area that came into existence after its permit application was approved.
(ii) The operator has not caused or contributed to the pollutional discharges.
(iii) The proposed pollution abatement area is not hydrologically connected to an area where coal refuse disposal activities have been conducted under the permit.
(iv) The operator has not affected the proposed pollution abatement area by coal refuse disposal activities.
(v) The Department has not granted a bonding authorization and mining approval for the area under § 86.37(b) (relating to criteria for permit approval or denial).
(b) Notwithstanding subsection (a), authorization will not be granted under this subchapter for repermitting under §§ 86.12 and 86.14 (relating to continued operation under interim permits; and permit application filing deadlines), permit renewals under § 86.55 (relating to permit renewals: general requirements) or permit transfers under § 86.56 (relating to transfer of permit).
§ 90.304. Application for authorization.
(a) An operator who requests authorization under this subchapter shall comply with the permit application requirements of Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A--D, except as specifically modified by this subchapter. The operator shall also:
(1) Delineate on a map the proposed pollution abatement area, including the location of the preexisting discharges.
(2) Provide a description of the hydrologic balance for the proposed pollution abatement area that includes:
(i) Results of a detailed water quality and quantity monitoring program, including seasonal variations, variations in response to precipitation events and modeled baseline pollution loads using this monitoring program.
(ii) Monitoring for pH, alkalinity, acidity, total iron, total manganese, aluminum, sulfates, total suspended solids and other water quality parameters the Department deems relevant.
(3) Provide a description of the abatement plan that represents best technology and includes the following:
(i) Plans, cross-sections and schematic drawings describing the abatement plan proposed to be implemented.
(ii) A description and explanation of the range of abatement level that is anticipated to be achieved, costs and each step in the proposed abatement plan.
(iii) A description of the standard of success for revegetation necessary to ensure success of the abatement plan.
(b) The operator seeking this authorization shall continue the water quality and quantity monitoring program required by subsection (a)(2) after making the authorization request. The operator shall submit the results of this continuing monitoring program to the Department on a monthly basis until a decision on the authorization request is made.
§ 90.305. Application approval or denial.
(a) Authorization may not be granted under this subchapter unless the operator seeking the authorization affirmatively demonstrates the following to the satisfaction of the Department on the basis of information in the application:
(1) Neither the operator, nor an officer, principal shareholder, agent, partner, associate, parent corporation, subsidiary or affiliate, sister corporation, contractor or subcontractor, or a related party as defined in § 86.1 (relating to definitions) has either of the following:
(i) Legal responsibility or liability as an operator for treating the water pollution discharges from or on the proposed pollution abatement area.
(ii) Statutory responsibility or liability for reclaiming the proposed pollution abatement area.
(2) The proposed abatement plan will result in significant reduction of the baseline pollution load and represents best technology.
(3) The land within the proposed pollution abatement area can be reclaimed.
(4) The coal refuse disposal activities on the proposed pollution abatement area will not cause additional surface water pollution or groundwater degradation.
(5) The standard of success for revegetation will be achieved. The standard of success for revegetation for sites previously reclaimed to the standards of Chapters 87, 88 and 90 shall be the standards set forth in § 90.159 (relating to revegetation: standards for successful revegetation). The standard of success for revegetation for sites not previously reclaimed to the standards of Chapters 87, 88 and 90 shall be, at a minimum, the following, provided the site is not a bond forfeiture site where the forfeited money paid into the fund is sufficient to reclaim the forfeited site to the applicable standards:
(i) A ground cover of living plants not less than can be supported by the best available topsoil or other suitable material in the reaffected area.
(ii) A ground cover no less than that existing before disturbance of the area by coal refuse disposal activities.
(iii) Adequate vegetation to control erosion. Vegetation may be no less than that necessary to ensure the success of the abatement plan.
(6) The coal refuse disposal activities on permitted areas other than the proposed pollution abatement area will not cause surface water pollution or groundwater degradation.
(7) Requirements of § 86.37(a) (relating to criteria for permit approval or denial) that are consistent with this section have been met.
(b) An authorization may be denied under this subchapter if granting the authorization will, or is likely to, affect a legal responsibility or liability under The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.19a), Chapter 86 (relating to surface and underground coal mining: general) or Subchapters A--D, for the proposed pollution abatement area or other areas or discharges in the vicinity of the proposed pollution abatement area.
(c) Authorization may not be granted under this subchapter unless there are one or more preexisting discharges from or on the pollution abatement area.
(d) The authorization allowed under this subchapter is only for the pollution abatement area and does not apply to other areas of the permit.
§ 90.306. Operational requirements.
(a) An operator who receives an authorization under this subchapter shall comply with Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A--D except as specifically modified by this subchapter. The operator shall also:
(1) Implement the approved water quality and quantity monitoring program for the pollution abatement area until the requirements of § 90.309 (relating to criteria and schedule for release of bonds on pollution abatement areas) are met.
(2) Implement the approved abatement plan.
(3) Notify the Department immediately prior to the completion of each step of the abatement plan.
(4) Provide a progress report to the Department within 30 days after the completion of each step of the abatement program that includes a statement signed by the operator, and if required by the Department, a statement signed by the supervising engineer, that all work has been performed in accordance with the terms and conditions of the pollution abatement authorization, the approved maps, plans, profiles and specifications.
§ 90.307. Treatment of discharges.
(a) Except for preexisting discharges that are not encountered during coal refuse disposal activities or the implementation of the abatement plan, the operator shall comply with § 90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).
(b) The operator shall treat the preexisting discharges that are not encountered during coal refuse disposal activities or implementation of the abatement plan to comply with the effluent limitations established by best professional judgment. The effluent limitations established by best professional judgment may not be less than the baseline pollution load. If the baseline pollution load, when expressed as a concentration for a specific parameter, satisfies the effluent limitation in § 90.102 for that parameter, the operator shall treat the preexisting discharge for that parameter to comply with either effluent limitations established by best professional judgment or the effluent limitations in § 90.102.
(c) For purposes of subsections (a) and (b), the term encountered may not be construed to mean diversions of surface water and shallow groundwater flow from areas undisturbed by the implementation of the abatement plan that would otherwise drain into the affected area, as long as the diversions are designed, operated and maintained under § 90.104 (b)--(h) (relating to hydrologic balance: diversions).
(d) An operator required to treat preexisting discharges will be allowed to discontinue treating the discharges under subsection (b) when the operator affirmatively demonstrates the following to the Department's satisfaction:
(1) The preexisting discharges are meeting the effluent limitations established by subsection (b) as shown by groundwater and surface water monitoring conducted by the operator or the Department.
(2) Coal refuse disposal activities under the permit-- including the pollution abatement area--are being or were conducted under the requirements of the permit and the authorization, and Chapter 86 (relating to surface and underground mining: general) and this chapter except as specifically modified by this subchapter.
(3) The operator has implemented each step of the abatement plan as approved in the authorization.
(4) The operator did not cause or allow additional surface water pollution or groundwater degradation by reaffecting the pollution abatement area.
(e) If after discontinuance of treatment of discharges under subsection (d) the discharges fail to meet the effluent limitations established by subsection (b), the operator shall reinstitute treatment of the discharges under subsection (b). An operator who reinstitutes treatment under this subsection will be allowed to discontinue treatment if the requirements of subsection (d) are met.
(f) Discontinuance of treatment under subsection (d) may not be deemed or construed to be or to authorize a release of bond under § 90.309 (relating to criteria and schedule for release of bonds on pollution abatement areas).
§ 90.308. Request for bond release.
Sections 86.172(c) and 90.309 (relating to criteria for release of bond; and criteria and schedule for release of bonds on pollution abatement areas) apply to the release of bonds for pollution abatement areas authorized by this subchapter. Section 86.172(a), (b) and (d) is not applicable to the release of bonds.
§ 90.309. Criteria and schedule for release of bonds on pollution abatement areas.
(a) The Department will release up to 50% of the amount of bond for the authorized pollution abatement area if the applicant demonstrates and the Department finds the following:
(1) The coal refuse disposal activities were conducted on the permit area, including the pollution abatement area, under the requirements of the permit and the authorization, Chapter 86 (relating to surface and underground mining: general) and this chapter except as specifically modified by this subchapter.
(2) The operator has satisfactorily completed backfilling, grading, installing the water impermeable cover and drainage control in accordance with the approved reclamation plan.
(3) The operator has properly implemented each step of the pollution abatement plan approved and authorized under this subchapter.
(4) The operator has not caused degradation of the baseline pollution load at any time during the 6 months prior to the submittal of the request for bond release under this subsection and until the bond release is approved as shown by all groundwater and surface water monitoring conducted by the permittee under § 90.306(a)(1) (relating to operational requirements) or conducted by the Department.
(5) The operator has not caused or contributed to surface water pollution or groundwater degradation by reaffecting the pollution abatement area.
(b) The Department will release up to an additional 35% of the amount of bond for the authorized pollution abatement area but retain an amount sufficient to cover the cost to the Department of reestablishing vegetation if completed by a third party if the operator demonstrates and the Department finds the following:
(1) The operator has replaced the topsoil or material conserved under § 90.97 (relating to topsoil: removal), completed final grading, planting and established revegetation under the approved reclamation plan and achieved the standards of success for revegetation in § 90.305(a)(5) (relating to application approval or denial).
(2) The operator has not caused or contributed to groundwater or surface water pollution by reaffecting the pollution abatement area.
(3) The operator has achieved the following standards:
(i) Achieved the actual improvement of the baseline pollution load described in the approved abatement plan as shown by groundwater and surface water monitoring conducted by the permittee for the time provided in the abatement plan after completion of backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard for success in § 90.305(a)(5).
(ii) Achieved the following:
(A) At a minimum has not caused degradation of the baseline pollution load as shown by groundwater and surface water monitoring conducted by the operator or the Department for one of the following:
(I) For 12 months from the date of initial bond release under subsection (a), if backfilling, final grading, drainage control, placement of impermeable cover, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in § 90.305(a)(5) have been completed.
(II) If treatment has been initiated at any time after initial bond release under subsection (a) and § 90.307(e) (relating to treatment of discharges), for 12 months from the date of discontinuance of treatment under § 90.307(d), if backfilling, final grading, drainage control, placement of impermeable cover, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in § 90.305(a)(5) have been completed.
(B) Conducted all the measures provided in the approved abatement plan and additional measures specified by the Department in writing at the time of initial bond release under subsection (a) for the area requested for bond release.
(C) Caused aesthetic or other environmental improvements and the elimination of public health and safety problems by engaging in coal refuse disposal activities and reaffecting the pollution abatement area.
(D) Stabilized the pollution abatement area.
(c) The Department will release the remaining portion of the amount of bond on the authorized pollution abatement area if the operator demonstrates and the Department finds the following:
(1) The operator has successfully completed the approved abatement and reclamation plans, and the pollution abatement area is capable of supporting the postdisposal land use approved under § 90.166 (relating to postdisposal land use).
(2) The operator has complied with the permit and the authorization, Chapter 86 and this chapter, except as specifically modified by this subchapter.
(3) The operator has not caused degradation of the baseline pollution load from the time of bond release under subsection (b) or, if treatment has been initiated after bond release under subsection (b) in accordance with § 90.307(e) for 5 years from the discontinuance of treatment under § 90.307(d).
(4) The applicable liability period has expired under § 86.151 (relating to period of liability).
Subchapter G. EXPERIMENTAL PRACTICES Sec.
90.401. General. § 90.401. General.
(a) To encourage advances in coal refuse disposal practices, coal refuse site reclamation and advances in technology or practices that will enhance environmental protection with respect to coal refuse disposal activities, the Department may grant permits approving experimental practices and demonstration projects. The Department may grant these permits under the following circumstances:
(1) The environmental protection provided will be potentially more protective or at least as protective as required by this chapter, the Coal Refuse Disposal Control Act (52 P. S. §§ 30.51-30.66) and Chapter 86 (relating to surface and underground coal mining: general).
(2) The coal refuse disposal activities approved under the permits are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practices or demonstration projects.
(3) The experimental practices or demonstration projects do not reduce the protection afforded public health and safety below that provided by this chapter, the Coal Refuse Disposal Control Act and Chapter 86.
(b) Experimental practice permits issued under this subchapter shall meet the provisions, standards and information requirements of the 30 CFR 785.13 (relating to experimental practices mining).
[Pa.B. Doc. No. 01-1270. Filed for public inspection July 13, 2001, 9:00 a.m.]
Document Information
- PA Codes:
- 25 Pa. Code § 88.281
25 Pa. Code § 88.310
25 Pa. Code § 88.332
25 Pa. Code § 90.1
25 Pa. Code § 90.5
25 Pa. Code § 90.34
25 Pa. Code § 90.45
25 Pa. Code § 90.49
25 Pa. Code § 90.201
25 Pa. Code § 90.202
25 Pa. Code § 90.203
25 Pa. Code § 90.204
25 Pa. Code § 90.205
25 Pa. Code § 90.206
25 Pa. Code § 90.207
25 Pa. Code § 90.301
25 Pa. Code § 90.302
25 Pa. Code § 90.303
25 Pa. Code § 90.304
25 Pa. Code § 90.305
25 Pa. Code § 90.306
25 Pa. Code § 90.307
25 Pa. Code § 90.308
25 Pa. Code § 90.309
25 Pa. Code § 90.401