[28 Pa.B. 2227]
[Continued from previous Web Page]
Subchapter C. RECLAMATION
PERFORMANCE STANDARDS § 89.82. Protection of fish, wildlife and related environmental values.
(a) The operator shall, to the extent possible using the best technology currently available, minimize disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of the resources where practicable.
(b) The operator shall promptly report to the Department the presence in the permit area of threatened or endangered species under State or Federal laws of which that person becomes aware and which was not previously reported to the Department by that person. Upon notification, the Department will consult with the Game Commission or the Fish and Boat Commission and appropriate Federal fish and wildlife agencies and, after consultation, identify whether, and under what conditions, the operator may proceed.
(c) The operator shall, to the extent possible using the best technology currently available:
(1) Restore, and enhance when practicable, natural riparian vegetation on the banks of streams, lakes and other wetland areas.
(2) Select plant species for their proven nutritional value and their ability to support and enhance fish and wildlife habitat, when the postmining land use is to be fish and wildlife habitat. Plants should be grouped and distributed in a manner which optimizes edge effect, cover and other benefits for fish and wildlife.
(3) Intersperse reclaimed lands with green belts, utilizing species of grass, shrubs and trees useful as food and cover for birds and small animals, when the postmining land use is to be residential, public service or industrial land use.
(4) Design fences, overland conveyors and other potential barriers to permit passage for large mammals, except where the Department determines that these requirements are unnecessary.
(5) Fence, cover or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials.
(d) Underground mining activities may not be conducted in a manner which would result in the unlawful taking of a bald or golden eagle, its nest or its eggs. The operator shall promptly report to the Department a golden or bald eagle nest within the permit area of which the operator becomes aware. Upon notification the Department will consult with the United States Fish and Wildlife Service and the Game Commission and, after consultation, will identify whether, and under what conditions, the operator may proceed.
(e) Underground mining activities may not be conducted which are likely to jeopardize the continued existence of endangered or threatened species listed by the Secretary of the Interior, the Game Commission or the Fish and Boat Commission or which are likely to result in the destruction or adverse modification of designated critical habitats of these species in violation of the Endangered Species Act of 1973 (16 U.S.C.A. §§ 1531--1544).
§ 89.87. Regrading or stabilizing rills and gullies.
(a) Exposed surface areas shall be protected and stabilized to effectively control erosion and air pollution attendant to erosion.
(b) Rills and gullies, which form in areas that have been regraded and topsoiled and which do one of the following shall be filled, regraded or otherwise stabilized:
(1) Disrupt the approved postmining land use or the reestablishment of the vegetative cover.
(2) Cause or contribute to a violation of water quality standards for receiving streams.
(c) For areas listed in subsection (b), the topsoil shall be replaced, and the areas shall be reseeded or replanted.
§ 89.88. Postmining land use.
(a) Surface land areas affected by underground mining activities shall be restored, in a timely manner, to conditions that are capable of supporting the use which the areas were capable of supporting before any mining, or to higher or better uses achievable under the criteria and procedures of subsection (c).
(b) The premining use of land to which the postmining land use is compared shall be those uses which the land previously supported, if the land had not been previously mined and had been properly managed.
(c) Alternative land uses may be approved by the Department after consultation with the landowner or the land management agency having jurisdiction over the lands, if the following apply:
(1) The proposed alternative land use is compatible with adjacent land use and, when applicable, with existing local, State or Federal land use policies and plans. When an alternative land use is proposed, the Department will notify authorities with statutory responsibility for land use policies and plans. These authorities shall have 60 days to submit written statements on the proposed alternative land use. Any required approval of local, State or Federal land management agencies, including any necessary zoning or other changes required for the land use, is obtained and remains valid throughout the mining activities.
(2) The proposed postmining land use is reasonably likely to be achieved which may be demonstrated by the following or other similar criteria: Specific plans are prepared and submitted to the Department which show the feasibility of the alternative land use as related to projected land use trends and markets, which include a schedule showing how the proposed use will be developed and achieved within a reasonable time after mining, and which show how the use will be sustained. The Department may require appropriate demonstrations to show how the use will be sustained. The Department may require appropriate demonstrations to show that the planned procedures are feasible, reasonable and integrated with mining and reclamation, and that the plans will result in successful reclamation.
(3) The proposed uses will neither present actual nor probable hazard to public health, safety or water flow diminution or pollution.
(4) The proposed uses will not involve unreasonable delays in reclamation.
(5) Necessary approval of measures to prevent adverse effects on fish, wildlife and related environmental values and threatened or endangered plants are obtained from the Department and appropriate State and Federal fish and wildlife management agencies.
(6) Proposals to change premining land uses of range, fish and wildlife habitat, forest land, hayland or pasture to a postmining cropland use, when the cropland would require continuous maintenance such as seeding, plowing, cultivation, fertilization or other similar practices to be practicable or to comply with applicable Federal, State and local laws, have been reviewed by the Department to ensure that:
(i) There is a firm written commitment by the operator or by the landowner or land manager to provide sufficient crop management after release of applicable performance bonds under Chapter 86, Subchapter F (relating to bonding and insurance requirements) to assure that the proposed postmining cropland use remains practical and reasonable.
(ii) There is sufficient water available and committed to maintain crop production.
(iii) Topsoil quality and depth are sufficient to support the proposed use.
§ 89.90. Restoration of roads.
(a) Unless the Department approves retention of a road as suitable for the approved postmining land use, as soon as practicable after the road is no longer needed for operations, reclamation or monitoring:
(1) The road shall be closed to vehicular traffic.
(2) The natural drainage patterns shall be restored.
(3) Bridges and culverts shall be removed.
(4) Roadbeds shall be ripped or scarified.
(5) Fill slopes shall be rounded or reduced and shaped to conform the site to adjacent terrain and to meet natural drainage restoration standards.
(6) Cut slopes shall be shaped to blend with the natural contour.
(7) Cross drains, dikes and water bars shall be constructed to minimize erosion.
(8) Terraces shall be constructed as necessary to prevent excessive erosion and to provide long-term stability in cut-and-fill-slopes.
(9) Road surfaces shall be covered with topsoil in accordance with § 89.85(b) (relating to topsoil use) and revegetated in accordance with § 89.86 (relating to revegetation).
(b) Road-surfacing materials shall be removed, hauled or conveyed, and disposed of in accordance with § 89.63 (relating to disposal of noncoal wastes).
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 chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * *
Land use--Specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur. Changes of land use from one of the following categories to another shall be considered as a change to an alternative land use which is subject to approval by the Department.
* * * * *
(x) Unmanaged natural habitat--Idle land which does not require a specific management plan after the reclamation and revegetation have been accomplished.
* * * * *
Subchapter C. MINIMUM OPERATION AND RECLAMATION PLAN INFORMATION REQUIRED IN APPLICATIONS FOR COAL REFUSE DISPOSAL § 90.31. General requirements.
An application shall contain a description of the coal refuse disposal activities proposed to be conducted during the life of the coal refuse disposal operations within the proposed permit area, including, at a minimum, the following:
(1) A narrative description of the type and method of coal refuse disposal procedures and proposed engineering techniques and the major equipment to be used during operations.
(2) A narrative explaining the construction, modification, use, maintenance and removal of the following facilities and structures, unless retention of the facility or structure is necessary for postdisposal land use as specified in § 90.166 (relating to postdisposal land use):
(i) Dams, embankments and other impoundments.
(ii) Overburden and topsoil handling and storage areas.
(iii) Coal removal, handling, storage, cleaning, processing and transportation areas and structures.
(iv) Spoil, coal refuse, mine development waste and noncoal waste removal, handling, storage, transportation and disposal areas and structures.
(v) Mine facilities.
(vi) Water and air pollution control facilities.
(vii) Erosion and sediment control facilities.
(3) A description of the measures to be employed to ensure that all debris, potential acid-forming and potential toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with this chapter and a description of the contingency plans which have been developed to preclude combustion of the materials.
(4) A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, line or manage exploration holes, other boreholes, wells and other openings within the proposed permit area.
(5) A demonstration that the notification requirements of § 86.31(e) (relating to public notices of filing of permit application) have been satisfied.
§ 90.40. Protection of public parks and historic places.
(a) For publicly-owned parks or historic places listed on the National Register of Historic Places that may be adversely affected by the proposed coal refuse disposal activities, each application shall describe the measures to be used to accomplish the following:
(1) Prevent adverse impacts and meet the requirements of Chapter 86, Subchapter D (relating to areas unsuitable for mining).
(2) Minimize adverse impacts if valid existing rights exist or joint agency approval is to be obtained under Chapter 86, Subchapter D.
(b) The Department may require the applicant to protect historic or archaeological properties listed on or eligible for listing on the National Register of Historic Places through appropriate mitigation and treatment measures. Appropriate mitigation and treatment measures may be required to be taken after permit issuance, if the required measures are completed before the properties are affected by coal refuse disposal activity.
Subchapter D. PERFORMANCE STANDARDS FOR COAL REFUSE DISPOSAL § 90.93. Casing and sealing of drilled holes and underground workings.
(a) An exploration hole, other drill or borehole, well or other exposed underground opening--except for holes solely drilled and used for blasting--shall be cased, sealed or otherwise managed, as approved by the Department to:
(1) Prevent acid or other toxic drainage from entering groundwaters or surface waters.
(2) Minimize disturbance to the prevailing hydrologic balance.
(3) Ensure the safety of people, livestock, fish and wildlife and machinery in the permit and adjacent areas.
(4) Prevent groundwater or surface water from entering underground mine workings.
(b) If these openings are uncovered or exposed by coal refuse disposal activities within the permit area, they shall be permanently closed unless approved for water monitoring, or otherwise managed in a manner approved by the Department.
(c) Use of a drilled hole, borehole or monitoring well as a water well shall meet the provisions of § 90.115 (relating to hydrologic balance: groundwater monitoring).
(d) Gas and oil wells shall be sealed in accordance with the Oil and Gas Act (58 P. S. §§ 601.101--601.605).
(e) A solid barrier of undisturbed earth, 125 feet (38.1 meters) in radius shall be maintained around all oil and gas wells, unless one of the following happens:
(1) The well is sealed in accordance with subsection (d).
(2) The Department approves, in writing, a lesser distance, if:
(i) Access to the well is provided at all times.
(ii) The integrity of the well is maintained.
(iii) The measures included in the permit to minimize damage, destruction or disruption of services under § 90.147(b) (relating to support facilities and utility installations) are implemented.
(f) All exploration holes, other drill or boreholes, wells--other than gas or oil wells--and other exposed underground openings which have been identified in the approved permit application for use to return waste to an underground mine as part of an operation approved under Chapter 89 (relating to underground mining of coal and coal preparation facilities), or to be used to monitor groundwater conditions, shall be protected by temporary seals, barricades, fences or other protective devices approved by the Department. These devices shall be periodically inspected and maintained in good operating condition during the coal refuse disposal activities.
§ 90.97. Topsoil: removal.
(a) All topsoil shall be removed from the areas to be disturbed in a separate layer prior to drilling, blasting, coal refuse disposal or other surface disturbance. Any vegetation cover which would interfere with the removal and use of the topsoil shall be removed prior to topsoil removal.
(b) In the event removal of vegetative matter, topsoil or other materials may result in erosion which may cause air or water pollution, the size of the area from which topsoil is removed at any one time shall be limited and other measures taken that the Department may approve or require to control erosion.
(c) If topsoil is less than 12 inches (30.48 centimeters), a 12-inch (30.48 centimeters) layer of topsoil, subsoil and unconsolidated materials shall be removed, segregated, conserved and replaced as the final surface soil layer. If the topsoil and all unconsolidated material measures less than 12 inches (30.48 centimeters), all the topsoil, subsoil and unconsolidated material shall be removed and the mixture segregated and redistributed as the final surface soil layer.
(d) On areas that have been previously affected by mining or coal refuse disposal activities and have no available topsoil or subsoil, sufficient material best suited to support vegetation shall be segregated, conserved and redistributed as the final surface layer.
(e) The B horizon and portions of the C horizon, or other underlying layers demonstrated to have qualities for comparable root development, shall be segregated and replaced as subsoil if the Department determines that either of these is necessary or desirable to ensure soil productivity consistent with the approved postdisposal land use.
(f) When approved by the Department, in writing, other material may be substituted or used as a supplement to topsoil if the operator demonstrates that the resulting soil medium is equal or more suitable than topsoil for sustaining vegetation and soil productivity. In making this demonstration, the Department may require chemical and physical analyses of the substituted material and topsoil. These analyses may include determinations of pH, net acidity or alkalinity, phosphorus, potassium, texture class, field site trials or greenhouse tests or other analyses as required by the Department.
§ 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 the 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) In no case shall the treatment requirements and effluent limitations established under § 90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices) 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.
§ 90.102. Hydrologic balance: water quality standards, effluent limitations and best management practices.
(a) A person may not allow a discharge of water from an area disturbed by coal refuse disposal activities, including areas disturbed by mineral preparation, processing or handling facilities which exceeds the following groups of effluent criteria. The effluent imitations are to be applied under subsection (b).
Group A
30-day Daily Instantaneous Parameter Average Maximum Maximum iron (total) 3.0 mg/l 6.0 mg/l 7.0 mg/l manganese (total) 2.0 mg/l 4.0 mg/l 5.0 mg/l suspended solids 35 mg/l 70 mg/l 90 mg/l pH 1 greater than 6.0; less than 9.0 alkalinity greater than acidity 1 1 The parameter is applicable at all times.
Group B
Instantaneous Parameter Maximum iron (total) 7.0 mg/l settleable solids 0.5 ml/l pH greater than 6.0; less than 9.0 alkalinity greater than acidity
Group C
Instantaneous Parameter Maximum pH greater than 6.0; less than 9.0 alkalinity greater than acidity
* * * * *
§ 90.106. Hydrologic balance: erosion and sedimentation control.
(a) Appropriate erosion and sediment control measures shall be designed, constructed and maintained using the best technology currently available to:
(1) Prevent, to the extent possible, contributions of sediment to stream flow or to runoff outside the affected area.
(2) Meet the treatment requirements and effluent limitations of § 90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).
(3) Minimize erosion to the extent possible.
(4) Meet the requirements of Chapter 102 (relating to erosion control).
(b) All areas disturbed by coal refuse disposal activities shall be permanently stabilized as soon as practicable.
§ 90.134. Haul roads and access roads: general.
(a) Haul roads and access roads shall be designed, constructed and maintained to control or prevent: contributions of sediment to streams or runoff outside the affected area; flooding; air and water pollution; damage to fish and wildlife or their habitat; and damage to public or private property. To ensure environmental protection appropriate for their planned duration and use, including consideration of the type and size of equipment used, the design and construction or reconstruction of roads shall incorporate appropriate limits for grade, width, surface materials, surface drainage control, culvert placement and culvert size, in accordance with current, prudent engineering practices, and necessary design criteria established by the Department. Upon completion of the associated surface mining activities, the area disturbed by the road shall be restored in accordance with § 90.140 (relating to haul roads and access roads: restoration), unless retention of the road and its maintenance plan are approved as part of the postmining land use.
(b) The haul road or access roads may not be located in or within 100 feet (30.48 meters) of a perennial or intermittent stream except in accordance with § 86.102 (relating to areas where mining is prohibited or limited). Crossing of a perennial or intermittent stream shall be made using bridges, culverts or similar structures. Bridges, culverts or other encroachment or water obstruction shall meet the requirements of Chapter 105 (relating to dam safety and waterway management).
(c) Each road shall have a drainage system that is compatible with the natural drainage system, structurally stable and will pass safely the peak flow from a 10-year, 24-hour precipitation event, or larger event if required by the Department. The drainage system shall include sloped or crowned road surface, cross drains or culverts, stabilized ditches, erosion-resistant surfacing, sediment traps and other appropriate sediment control measures as required by § 90.106 (relating to hydrologic balance: erosion and sedimentation control).
(d) Roads shall be constructed on stable areas that avoid wet or unstable soils.
(e) Prior to the construction of the road, all topsoil shall be removed, stored on a stable site and protected against erosion and compaction until restoration of the haul road.
(f) Disturbed areas adjacent to the road shall be vegetated or otherwise stabilized to prevent erosion.
(g) Haul roads shall be surfaced with material sufficiently durable for the anticipated volume of traffic and the weight and speed of vehicles using the road. Acid or toxic-forming material may not be used for surfacing or construction of a road except when the road is within the confines of a coal refuse disposal or reprocessing area, and the effluent meets the requirements of § 90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).
(h) A road damaged by a catastrophic event, such as a flood or earthquake, shall be repaired or reclaimed as soon as practicable after the damage has occurred.
(i) Haul roads and roads approved as part of the postmining land use shall be certified by a qualified registered professional engineer or qualified registered land surveyor that the roads have been constructed or reconstructed as designed in accordance with the approved plan.
§ 90.140. Haul roads and access roads: restoration.
Unless the Department approves retention of a road as suitable for the approved postdisposal land use in accordance with § 90.166 (relating to postdisposal land use), as soon as practicable after the road is no longer needed for operations, reclamation or monitoring:
(1) The road shall be physically closed to vehicular traffic.
(2) The road and adjacent slopes shall be regraded to blend with the natural contours and drainage pattern.
(3) Bridges and culverts shall be removed.
(4) Roadbeds shall be ripped or scarified.
(5) Fill slopes shall be rounded or reduced and shaped to conform the site to adjacent terrain and to meet natural drainage restoration standards.
(6) Cut slopes shall be shaped to blend with the natural contour.
(7) Cross drains, dikes and water bars shall be constructed to minimize erosion.
(8) Terraces shall be constructed as necessary to prevent excessive erosion and to provide long-term stability in cut and fill slopes.
(9) Road surfacing materials shall be removed if the materials are incompatible with the postmining land use and establishment of vegetation.
(10) Disturbed areas shall be covered with topsoil in accordance with §§ 90.96--90.100 and revegetated in accordance with § 90.151 (relating to revegetation: general requirements).
(11) Excess material and debris shall be disposed in a manner approved by the Department.
§ 90.147. Support facilities and utility installations.
(a) Support facilities required for, or used incidentally to, the operation of the coal refuse disposal area, including, but not limited to, buildings, coal loading facilities at or near the coal refuse disposal site, coal storage facilities, equipment storage facilities, fan buildings, hoist buildings, preparation plants, sheds, shops and other buildings, shall be located, maintained and used in a manner that does the following:
(1) Prevents or controls erosion and siltation, water pollution and damage to public or private property.
(2) To the extent possible using the best technology currently available minimizes:
(i) Damage to fish, wildlife and related environmental values.
(ii) Additional contributions of suspended solids to streamflow or runoff outside the permit area. These contributions may not be in excess of limitations of State or Federal law.
(b) All coal refuse disposal activities shall be conducted in a manner which minimizes damage, destruction or disruption of services provided by oil, gas and water wells; oil, gas and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under or through the permit area, unless otherwise approved by the owner of those facilities and the Department.
§ 90.150. Protection of fish, wildlife and related environmental values.
(a) A person conducting coal refuse disposal activities shall, to the extent possible using the best technology currently available:
(1) Minimize disturbances and adverse impacts of the activities on fish, wildlife and related environmental values, and achieve enhancement of the resources when practical.
(2) Locate and operate haul and access roads to avoid or minimize impacts to fish and wildlife species or other species protected by State or Federal law.
(3) Avoid disturbance to, enhance where practicable, or restore habitats of unusually high value for fish and wildlife.
(4) Restore, enhance when practicable, or maintain natural riparian vegetation on the banks of streams, lakes and other wetland areas.
(5) Not use restricted pesticides on the areas during coal refuse disposal activities, unless approved by the Department of Agriculture.
(6) Do the following, if fish and wildlife habitat is to be postdisposal land use, in addition to the requirements of §§ 90.151--90.157, 90.159 and 90.160:
(i) Select plant species to be used on reclaimed areas, based on the following criteria:
(A) Their proven nutritional value for fish and wildlife.
(B) Their uses as cover for fish and wildlife.
(C) Their ability to support and enhance fish and wildlife habitat after release of bonds.
(ii) Distribute plant groupings to maximize benefit to fish and wildlife. Plants shall be grouped and distributed in a manner which optimizes edge effect, cover and other benefits for fish and wildlife.
(7) Intersperse the fields with trees, hedges or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types for birds and other animals when cropland is to be the alternative postdisposal land use and when appropriate for wildlife and crop management practices. Wetlands shall be preserved or created rather than drained or otherwise permanently abolished.
(8) Intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs and trees useful as food and cover for birds and small animals, unless the green belts are inconsistent with the approved postdisposal land use, when the primary land use is to be residential, public service or industrial land use.
(9) Design fences, overland conveyors and other potential barriers to permit passage for large mammals, except if the Department determines that the requirements are unnecessary.
(10) Fence, cover or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials.
(b) A person who conducts coal refuse disposal activities shall promptly report to the Department the presence in the permit area of threatened or endangered species under State or Federal laws of which that person becomes aware and which was not previously reported to the Department by that person. Upon notification, the Department will consult with the Game Commission or the Fish and Boat Commission and appropriate Federal fish and wildlife agencies and, after consultation, will identify whether, and under what conditions, the operator may proceed.
(c) Coal refuse disposal activities may not be conducted in a manner which would result in the unlawful taking of a bald or golden eagle, its nest or its eggs. The operator shall promptly report to the Department a golden or bald eagle nest within the permit area of which the operator becomes aware. Upon notification, the Department will consult with the United States Fish and Wildlife Service and the Game Commission and, after consultation, will identify whether, and under what conditions, the operator may proceed.
(d) Coal refuse disposal activities may not be conducted which are likely to jeopardize the continued existence of endangered or threatened species listed by the Secretary of the Interior, the Game Commission or the Fish and Boat Commission or which are likely to result in the destruction or adverse modification of designated critical habitats of the species in violation of the Endangered Species Act of 1973, 16 U.S.C.A. §§ 1531--1544.
§ 90.166. Postdisposal land use.
(a) Prior to the release of land from permit area in accordance with Chapter 86, Subchapter F (relating to bonding and insurance requirements), all affected areas shall be restored in a timely manner to conditions that are capable of supporting the uses which they were capable of supporting before any coal refuse disposal activities, or to higher or better uses achievable under criteria and procedures of this section.
(b) The predisposal use of land to which the postdisposal land use is compared shall be determined by the following:
(1) The postdisposal land use for land that has not been previously mined or had coal refuse disposal activities and has been properly managed shall be judged on the basis of those uses which the land previously supported.
(2) The postdisposal land use for land that has been previously mined and not reclaimed shall be judged on the basis of the condition prior to any mining, including disposal, or the highest and best use that can be achieved and is compatible with surrounding areas.
(c) Alternative land uses may be approved by the Department after consultation with the landowner or the land management agency having jurisdiction over the lands and after determining that the following criteria are met:
(1) The proposed postdisposal land use is compatible with adjacent land use and applicable land use policies, plans, and programs and Federal, State and local law. A written statement of the views of the authorities with statutory responsibilities for land use policies and plans is submitted to the Department before coal refuse disposal activities begin. Any required approval, including any necessary zoning or other changes required for land use by local, State or Federal land management agencies, is obtained and remains valid throughout the coal refuse disposal activities.
(2) The owner of the surface requests in a notarized written statement that the alternative land use be approved.
(3) The proposed postmining land use is reasonably likely to be achieved which may be demonstrated by one or more of the following or other similar criteria:
(i) Specific plans are prepared and submitted to the Department which show the feasibility of the postdisposal land use as related to projected land use trends and markets. The plan shall include a schedule showing how the proposed use will be developed and achieved within a reasonable time after coal refuse disposal activities are completed and how the development will be sustained. The Department may require appropriate demonstrations to show that the planned procedures are feasible, reasonable and integrated with coal refuse disposal activities, and that the plans will result in successful reclamation.
(ii) Provision for necessary public facilities is ensured as evidenced by letters of commitment from parties other than the person who conducts coal refuse disposal activities, as appropriate, to provide the public facilities in a manner compatible with the plans submitted under § 86.34 (relating to informal conferences). The letters shall be submitted to the Department before coal refuse disposal activities begin.
(iii) Specific and feasible plans are submitted to the Department which show that financing, attainment and maintenance of the postdisposal land use are feasible and, if appropriate, are supported by letters of commitment from parties other than the person who conducts the coal refuse disposal activities.
(4) The proposed use will not present an actual or potential threat to public health or safety or of water diminution, interruption, contamination or pollution.
(5) The use will not involve unreasonable delays in reclamation.
(6) Necessary approval of measures to prevent or mitigate adverse effects on fish, wildlife and related environmental values and threatened or endangered plants is obtained from the Department, and appropriate State and Federal fish and wildlife management agencies have been provided a 30-day period to review the plan before coal refuse disposal activities begin.
[Pa.B. Doc. No. 98-761. Filed for public inspection May 8, 1998, 9:00 a.m.]
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