RULES AND REGULATIONS
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,
Chairperson
Annex 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.
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