RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 87, 88 AND 90 ]
Remining Requirements
[46 Pa.B. 6780]
[Saturday, October 22, 2016]The Environmental Quality Board (Board) amends the remining regulations in Chapter 87, Subchapter F, Chapter 88, Subchapter G and Chapter 90, Subchapter F (relating to surface coal mines: minimum requirements for remining areas with pollutional discharges; anthracite surface mining activities and anthracite bank removal and reclamation activities: minimum requirements for remining areas with pollutional discharges; and coal refuse disposal activities on areas with pre-existing pollutional discharges) to read as set forth in Annex A. This final-form rulemaking incorporates requirements of the Federal remining rules in 40 CFR Part 434, Subpart G (relating to coal remining) and the statistical methods in 40 CFR Part 434, Appendix B (relating to baseline determination and compliance monitoring for pre-existing discharges at remining operations).
This final-form rulemaking was adopted by the Board at its meeting of May 17, 2016.
A. Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Thomas Callaghan, PG, Director, Bureau of Mining Programs, Rachel Carson State Office Building, 5th Floor, 400 Market Street, P.O. Box 8461, Harrisburg, PA 17105-8461, (717) 787-5015; or Joseph Iole, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available on the Department of Environmental Protection's (Department) web site at www.dep.pa.gov (select ''Public Participation,'' then ''Environmental Quality Board (EQB)'').
C. Statutory Authority
This final-form rulemaking is authorized under the authority of section 5 of The Clean Streams Law (35 P.S. § 691.5), sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. §§ 1396.4(a) and 1396.4b) and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
D. Background and Purpose
The Commonwealth's remining program is implemented through Chapter 87, Subchapter F, Chapter 88, Subchapter G and Chapter 90, Subchapter F, as well as through technical guidance documents and individual permits. This program allows for liability protection for remining operations conducted on abandoned mine lands with existing pollutional discharges by enabling the Department to determine the pollution baseline at a site and set effluent limitations accordingly. Currently, the Department determines the pollution baseline using a single statistical method (Method 1), explained as follows, and incorporates the baseline in the individual permit.
Federal remining requirements are found in 40 CFR Part 434, Subpart G and Appendix B. The Federal requirements differ from the Pennsylvania requirements by providing the option of employing an alternative statistical method (Method 2) for determining the pollution baseline. The choice of methods depends on which method would more accurately characterize baseline levels due to site-specific factors.
The Federal regulations further provide for remining in cases in which the pollution baseline cannot be determined due to infeasibility of sampling and remining would result in significant water quality improvement that would not otherwise occur. Under these circumstances, the Federal regulations require an operator to submit a pollution abatement plan based on best management practices (BMP) without regard for numeric effluent limitations.
The preambles of the Federal remining regulations, proposed at 65 FR 19440 (April 11, 2000) and adopted at 67 FR 3370 (January 23, 2002), provide extensive additional background references explaining the statistical methods, BMPs and other requirements. Notably, the Federal regulations were informed by the extensive experience with remining in this Commonwealth.
This final-form rulemaking incorporates into the Commonwealth's regulations both statistical methods provided in the Federal regulations, eliminating the need to implement the methods through individual permits and providing flexibility regarding the choice of statistical method based on site-specific factors. This final-form rulemaking further provides for remining at sites in which it is infeasible to establish pollution baselines.
Summary of the Federal regulations
40 CFR Part 434, Subpart G
Subpart G of 40 CFR Part 434 includes specialized definitions, applicability and effluent limitations for remining.
The following definitions are included in 40 CFR 434.70 (relating to specialized definitions): ''coal remining operation,'' ''pollution abatement area,'' ''pre-existing discharge,'' ''steep slope'' and ''new source remining operation.''
Section 434.71 of 40 CFR (relating to applicability) includes a description of mine sites to which the regulations apply, requirements for water that is intercepted by remining activities, a grandfather clause for existing approved remining authorizations and a description of the time period during which the regulations apply.
The effluent limitations are established in four categories: best practicable control technology currently available (BPT); best available technology economically achievable (BAT); best conventional pollutant control technology (BCT); and new source performance standards (NSPS).
The BPT limitations in 40 CFR 434.72 (relating to effluent limitations attainable by the application of the best practicable control technology currently available (BPT)) are the most commonly applicable. The Federal BPT regulations require a site-specific pollution abatement plan designed to reduce the pollution load. They also establish numerical effluent limitations for pre-existing discharges for total iron, total manganese, net acidity and total suspended solids. These effluent limitations may not exceed the baseline pollution load, as defined under the methods described in 40 CFR Part 434, Appendix B. The BPT limitations also allow for circumstances under which the numerical limitations are not applicable, specifically in cases in which it is infeasible to collect samples to establish the baseline pollution load.
The BAT limitations in 40 CFR 434.73 (relating to effluent limitations attainable by application of the best available technology economically achievable (BAT)) require a pollution abatement plan and compliance with the baseline pollution load for net acidity, iron and manganese.
The BCT limitations in 40 CFR 434.74 (relating to effluent limitations attainable by application of the best conventional pollutant control technology (BCT)) require a pollution abatement plan and compliance with the baseline pollution load for total suspended solids.
The NSPS limitations in 40 CFR 434.75 (relating to new source performance standards (NSPS)) require a pollution abatement plan and compliance with the baseline pollution load for acidity, iron, manganese and total suspended solids.
40 CFR Part 434, Appendix B
Appendix B of 40 CFR Part 434 includes the statistical methods for establishing the baseline pollution load and determining compliance with the numerical effluent limitations. There are two methods (Method 1 and Method 2) to establish the baseline provided in Appendix B. There are also two time frames to determine compliance, one on a monthly basis (single-observation) and the second on an annual basis. The thresholds to determine compliance are referred to as triggers.
Method 1 for the single-observation trigger uses a statistical method that determines the tolerance interval of the 95th percentile above the median and compares that value with the sample being evaluated. Method 2 for the single-observation trigger is a nonparametric estimate of the 99th percentile of loadings. Method 1 for the annual trigger compares the baseline with 1 year's monitoring data for loading using the 95th percentile confidence interval for the median of each data set. Method 2 for the annual trigger uses the Wilcoxon-Mann-Whitney test to compare the baseline and monitoring year being evaluated. The Wilcoxon-Mann-Whitney test is a ranking test.
When the single-observation trigger is exceeded in 2 consecutive months, accelerated monitoring (weekly, for 4 weeks) is required. If the accelerated sampling confirms the exceedance, then treatment of the discharge is required. If the accelerated sampling does not confirm the exceedance, then the sampling may revert to a monthly basis.
When the annual trigger is exceeded, treatment of the discharge is required.
Project XL
In April 2000, the United States Environmental Protection Agency (EPA), Region III and the Department entered into an agreement under the EPA's Project XL program which allowed for a modified approach to remining permits. Under this program, the water quality performance for eight pilot study remining sites was evaluated based on stream water quality rather than discharge pollutant loading. Under Project XL, the basis for water quality evaluation was bimonthly receiving stream concentration data. The triggers were based on concentrations rather than loading.
The conclusion of the pilot study was that remining with in-stream monitoring was just as effective as the traditional discharge-based remining approach. Another conclusion was that the Project XL approach will encourage additional remining since it can be more cost-effective.
This final-form rulemaking deviates from the Federal regulations by requiring, in appropriate circumstances, in-stream baseline determinations and monitoring.
Current Pennsylvania remining program
The existing remining program in this Commonwealth is implemented through Chapter 87, Subchapter F, Chapter 88, Subchapter G and Chapter 90, Subchapter F, technical guidance documents and individual permit documents. Effluent limitations are determined on a case-by-case basis using best professional judgment.
Monitoring requirements and the pollution baseline are specified in each permit. The statistical method used is the same as Method 1 in 40 CFR Part 434, Appendix B, including the single-observation and the annual triggers.
The existing remining regulations require an applicant to continue the water quality and quantity monitoring program after submitting the permit application, at least until the permitting decision is made. The proposed rulemaking included a change to this approach making the sampling optional rather than mandatory. The Independent Regulatory Review Commission (IRRC) observed that the preamble of the proposed rulemaking did not explain this sufficiently.
During the development of the proposed rulemaking, the fact that the post-submission monitoring is not required under the Federal regulations presented the Department with the opportunity to re-evaluate the need for the additional data. Since an application is required to have sufficient data to establish the baseline and that this baseline is enforceable, it was concluded that it is no longer necessary to require this post-submission data. This issue was raised with the Mining and Reclamation Advisory Board's (MRAB) Regulation, Legislation and Technical Committee. Their recommendation was to allow for, but not require, the additional data collection. As an alternative to the requirement in the proposed rulemaking, the elimination of any reference to the continuation of sampling (to be exactly consistent with the Federal requirements) was considered. This was dismissed because in many cases (for example, when there is a large time delay or where other influences on the water quality have occurred) it may make sense to recalculate the baseline after the permit has been submitted, but before any mining occurs. This final-form rulemaking allows flexibility, letting the applicant decide whether to spend money on additional sampling.
MRAB collaboration
The Department collaborated with the MRAB's Regulation, Legislation and Technical Committee to develop the proposed rulemaking. At its October 23, 2014, meeting, the MRAB voted for the proposed rulemaking to move forward in the regulatory process. This final-form rulemaking was reviewed by the MRAB at its January 21, 2016, meeting. The MRAB recommended that the Board proceed as quickly as possible with this final-form rulemaking.
E. Summary of Changes to the Proposed Rulemaking
§§ 87.210(d)(1), 88.510(d)(1) and 90.310(d)(1). Effluent limitations
The Board revised these paragraphs to include reference to subsection (d)(4). In addition, these paragraphs have been revised to specify that ''the permit applicant shall establish an in-stream baseline concentration at a suitable point downstream from the remining operation, unless the Department waives the sampling requirement under paragraph (5) and the numeric effluent limitations in subsection (c)(1) do not apply.''
§ 87.212(b)(4). Procedure for calculating and applying a single-observation (monthly) trigger
A commentator pointed out that in § 87.212(b)(4) (relating to procedure for calculating and applying a single-observation (monthly) trigger) the subscript to the term ''x'' in the statement ''If n is odd, then M equals x'' was omitted. The Board added the correct subscript in this final-form rulemaking to properly identify the value of M if n is odd.
§§ 87.213(c)(7)(ii), 88.513(c)(7)(ii) and 90.313(c)(7)(ii). Procedure for calculating and applying an annual trigger
IRRC commented that in §§ 87.213, 88.513 and 90.313 (relating to procedure for calculating and applying an annual trigger) the calculations did not match the Federal regulations. Specifically, subsection (c)(7)(ii) includes a capital ''M'' rather than a lower case ''m.'' In response, the Board corrected the ''M'' in subsection (c)(7)(ii) to be ''m.''
F. Summary of Comments and Responses on the Proposed Rulemaking
Comments were received from one public commentator and from IRRC.
The public comment related to § 87.212(b)(4). It points out that the subscript to the term ''x'' in the statement ''If n is odd, then M equals x'' was omitted. In response, the Board added the correct subscript to properly identify the value of M if n is odd.
IRRC indicated that the Regulatory Analysis Form (RAF) was incomplete because there was no response to question 23. The Board corrected this omission in the final-form rulemaking package.
IRRC also indicated that the RAF should have referenced §§ 88.510 and 90.310 (relating to effluent limitations) in the response to question 11. The Board corrected this omission in the final-form rulemaking package.
IRRC noted that further explanation was needed to clarify the need for the amendment to § 87.204(b) (relating to application for authorization) regarding the continuation of sampling after the baseline is established. In the former regulation, the continuation of sampling was mandatory; it is optional in this final-form rulemaking. This amendment also applies to §§ 88.504 and 90.304 (relating to application for authorization). In response, the Board provides the following rationale, in addition to a response to the questions on the RAF: the Federal regulations do not require the continuation of sampling; the established baseline is enforceable without any additional data; a cost could be incurred by operators for unnecessary data collection; and the MRAB recommended the change. Further explanation has been provided that the alternative to the requirement in the proposed rulemaking was the elimination of any reference to the continuation of sampling to be consistent with the Federal requirements.
IRRC commented that § 87.210 (relating to effluent limitations) and §§ 88.510 and 90.310 are ambiguous because the reference in subsection (d)(1) includes the phrases ''establishing the baseline pollutant levels under this subsection'' and ''the permit applicant may establish an in-stream baseline concentration.'' In response the Board revised the wording to include reference to subsection (d)(4). In addition these subsections have been revised to specify that ''the permit applicant shall establish an in-stream baseline concentration at a suitable point downstream from the remining operation, unless the Department waives the sampling requirement under paragraph (5) and the numeric effluent limitations in subsection (c)(1) do not apply.''
IRRC further commented that §§ 87.213, 88.513 and 90.313 include calculations from the Federal regulations but do not match the Federal regulations. Specifically, the calculations in subsections (b)(4) and (6) and (c)(7)(iii) are missing additional sets of parentheses and subsection (c)(7)(ii) includes a capital ''M'' rather than a small ''m.'' In response, the Board corrected the ''M'' in subsection (c)(7)(ii) to be ''m.'' The additional parentheses are not needed due to the rules on order of operations for arithmetic. The Board concluded that including unnecessary parentheses would result in less clarity and more ambiguity. Therefore, this final-form rulemaking does not revise the calculations to exactly match the Federal calculations. However, the calculations in this final-form rulemaking provide the same results as the Federal calculations.
G. Benefits, Costs and Compliance
Benefits
This final-form rulemaking will allow for additional reclamation of abandoned mine lands by providing protection to mine operators from long-term treatment liability. The amendments that allow for remining in circumstances in which calculating the baseline pollution load of discharges is not feasible have the potential to open up areas to remining where it was not previously possible. Remining typically results in substantial improvements in water quality.
Compliance costs
The primary compliance costs are related to water sampling and analysis and implementation of BMPs for the abatement of abandoned mine drainage. However, these costs are part of the planning process for a mine operator when they decide if an area is economically mineable. Overall, compliance costs for a mine operator are reduced since this final-form rulemaking will provide for protection from long-term treatment liability.
Compliance assistance plan
Compliance assistance for this final-form rulemaking will be provided through the Department's routine interaction with trade groups and individual applicants. There are about 500 licensed surface coal mining operators in this Commonwealth, most of which are small businesses that will be subject to the regulations.
Paperwork requirements
This final-form rulemaking requires additional information as part of a permit application in the form of a robust pollution abatement plan. Current applicants for remining are required to provide an abatement plan with a remining application. The additional requirements are more focused and may make it simpler to provide the required plans.
H. Pollution Prevention
The Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. Remining operations implement BMPs that result in pollution prevention.
I. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on September 23, 2015, the Department submitted a copy of the notice of proposed rulemaking, published at 45 Pa.B. 5920 (October 3, 2015), to IRRC and the House and Senate Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, the Department shall submit to IRRC and the House and Senate Committees copies of comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Department considered all comments from IRRC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on August 17, 2016, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 18, 2016, and approved this final-form rulemaking.
K. 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 thereunder, 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 regulations do not enlarge the purpose of the proposed rulemaking published 45 Pa.B. 5920.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this preamble.
L. Order
The Board, acting under the authorizing statutes, orders that:
(1) The regulations of the Department, 25 Pa. Code Chapters 87, 88 and 90, are amended by adding §§ 87.210—87.213, 88.510—88.513 and 90.310—90.313 and amending §§ 87.202—87.207, 87.209, 88.502—88.507, 88.509, 90.302—90.307 and 90.309 to read as set forth in Annex A.
(2) 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.
(3) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Committees as required by the Regulatory Review Act (71 P.S. §§ 745.1—745.14).
(4) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(5) This order shall take effect immediately.
PATRICK McDONNELL,
Acting Chairperson(Editor's Note: See 46 Pa.B. 5790 (September 3, 2016) for IRRC's approval order.)
Fiscal Note: Fiscal Note 7-496 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 87. SURFACE MINING OF COAL
Subchapter F. SURFACE COAL MINES: MINIMUM REQUIREMENTS FOR REMINING AREAS WITH POLLUTIONAL DISCHARGES § 87.202. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Actual improvement—The reduction of the baseline pollution load resulting from the implementation of the approved pollution abatement plan; except that a reduction of the baseline pollution load achieved by water treatment may not be considered as actual improvement.
Baseline pollution load—The characterization of the pollution material being discharged from or on the pollution abatement area, described in terms of mass discharge for each parameter, including seasonal variations and variations in response to precipitation events. The Department will establish in each authorization the specific parameters, including, at a minimum, iron and acid loadings, it deems relevant for the baseline pollution load.
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 Clean Water Act (33 U.S.C.A. §§ 1311 and 1342).
Best technology—Measures and practices which will abate or ameliorate to the maximum extent possible pollutional discharges from or on the pollution abatement area. These measures include engineering, geochemical or other applicable practices.
Coal remining operation—A coal mining operation at a site on which coal mining was previously conducted and where the site has been abandoned or the performance bond has been forfeited.
Encountered discharge—
(i) A pre-existing discharge intercepted in the course of active surface mining activities, including, but not limited to, overburden removal, coal extraction and backfilling, or that occurs in the pit, any mining-related conveyance, sedimentation pond or treatment pond.
(ii) The term does not include diversions of surface water and shallow groundwater flow from areas undisturbed by the implementation of the pollution abatement plan which would otherwise drain into the affected area so long as they are designed, operated and maintained in accordance with § 87.105(b)—(g) (relating to hydrologic balance: diversions).
Pollution abatement area—The part of the permit area which is causing or contributing to the baseline pollution load, which shall include adjacent and nearby areas that must be affected to bring about significant improvement of the baseline pollution load, and which may include the immediate location of the discharges.
Pollution abatement plan—Best management practices (BMP), including, but not limited to, the addition of alkaline material, special handling plans for managing toxic and acid forming material, regrading, revegetation and daylighting, that when implemented will result in reduction of the baseline pollution load.
Pre-existing discharge—
(i) Any discharge resulting from mining activities that have been abandoned prior to the time of a remining permit application.
(ii) The term includes a pre-existing discharge that is relocated as a result of the implementation BMPs in the pollution abatement plan.
Steep slope—
(i) Any slope, including abandoned mine land features, above 20 degrees or a lesser slope as may be defined by the Department after consideration of soil, climate and other characteristics of a region.
(ii) The term does not apply to situations in which an operator is mining on flat or gently rolling terrain, on which an occasional steep slope is encountered and through which the mining operation is to proceed, leaving a plain or predominantly flat area.
§ 87.203. Applicability.
(a) Authorization may not be granted under this subchapter unless the authorization is part of:
(1) A permit issued after March 8, 1986, 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 surface coal mining 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 surface mining activities have been conducted under the permit.
(iv) The operator has not affected the proposed pollution abatement area by surface mining 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), no authorization may 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).
(c) This subchapter applies to pre-existing discharges that are located within or are hydrologically connected to pollution abatement areas of a coal remining operation.
(d) When a coal remining operation seeks reissuance of an existing remining permit with best professional judgment limitations and the Department determines that it is not feasible for a remining operator to re-establish baseline pollutant levels in accordance with the statistical procedures in this subchapter, pre-existing discharge limitations at the existing remining operation remain subject to baseline pollutant levels established during the original permit application.
§ 87.204. 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 and C—E, 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 pre-existing 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 flow, pH, alkalinity, acidity, total iron, total manganese, total aluminum, sulfates, total suspended solids and other water quality parameters the Department deems relevant.
(3) Provide a pollution abatement plan which must:
(i) Describe the pollution abatement area.
(ii) Be designed to reduce the pollution load from pre-existing discharges and identify the selected best management practices (BMP) to be used.
(iii) Describe the design specifications, construction specifications, maintenance schedules, criteria for monitoring and inspection, and expected performance of the BMPs.
(iv) Represent best technology and include:
(A) Plans, cross-sections and schematic drawings describing the pollution abatement plan proposed to be implemented.
(B) A description and explanation of the range of abatement level that probably can be achieved, costs and each step in the proposed pollution abatement plan.
(C) A description of the standard of success for revegetation necessary to insure success of the pollution abatement plan.
(v) Provide a description of and information on the pre-existing discharges hydrogeologically connected to the remining area.
(4) Determine the baseline pollution load.
(5) Provide the background data that are the bases for the baseline pollution load. The baseline pollution load shall be reported in pounds per day.
(b) The operator seeking this authorization may continue the water quality and quantity monitoring program required by subsection (a)(2) after making the authorization request. The operator may submit the results of this continuing monitoring program to the Department on a monthly basis until a decision on the authorization request is made.
§ 87.205. Approval or denial.
(a) Authorization may not be granted under this subchapter unless the operator seeking the authorization affirmatively demonstrates to the satisfaction of the Department on the basis of information set forth in the application that:
(1) Neither the operator, nor an officer, principal shareholder, agent, partner, associate, parent corporation, contractor or subcontractor, or a related party as defined in § 86.63(a)(1) (relating to compliance information) 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 pollution 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 surface mining operation on the proposed pollution abatement area will not cause additional ground- water degradation.
(5) The standard of success for revegetation will be achieved. The standard of success for revegetation shall be at a minimum:
(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 mining activities.
(iii) Adequate vegetation to control erosion. Vegetation may be no less than that necessary to insure the success of the pollution abatement plan.
(6) The surface mining operation 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 not inconsistent 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—1396.19b), Chapter 86 (relating to surface and underground coal mining: general) or Subchapters A and C—E, 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 pre-existing 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.
§ 87.206. Operational requirements.
An operator who receives an authorization under this subchapter shall comply with the requirements of Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A and C—E 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 § 87.209 (relating to criteria and schedule for release of bonds on pollution abatement areas) are met. The monitoring program must conform to the following:
(i) Sampling shall be conducted on a monthly basis for the pre-existing discharges and should adequately represent the seasonal range in loading rates as well as the median loading rate from each pre-existing discharge or combination of discharges.
(ii) Results shall be submitted on a quarterly basis.
(iii) Data must include the flow measurements and loading calculations.
(2) Implement the approved pollution abatement plan.
(3) Notify the Department when more frequent sampling is required.
(i) Weekly sampling of the pre-existing discharges shall begin if any two consecutive monthly samples of pollution load at any of the monitoring points or hydrologic units exceed one or more of the triggers established by the baseline data.
(ii) Weekly sampling requirements shall continue until two consecutive weekly sample analyses indicate that all parameters which triggered weekly sampling have dropped below the trigger established by the baseline data.
§ 87.207. Treatment of discharges.
(a) Except for pre-existing discharges which are not encountered during mining or the implementation of the pollution abatement plan, the operator shall comply with § 87.102 (relating to hydrologic balance: effluent standards).
(b) Except as provided in § 87.210(d) (relating to effluent limitations), the operator shall treat the pre-existing discharges which are not encountered during mining or implementation of the pollution 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 limitations at § 87.102 for that parameter, the operator shall treat the pre-existing discharge for that parameter to comply with either effluent limitations established by best professional judgment or the effluent limitations at § 87.102.
(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 pollution abatement plan which would otherwise drain into the affected area, so long as the diversions are designed, operated and maintained under § 87.105(b)—(g) (relating to hydrologic balance: diversions).
(d) An operator required to treat pre-existing discharges will be allowed to discontinue treating the discharges under subsection (b) when the operator affirmatively demonstrates to the Department's satisfaction that:
(1) The pre-existing 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) Surface coal mining 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 coal mining: general) and this chapter except as specifically modified by this subchapter.
(3) The operator has implemented each step of the pollution abatement plan as approved in the authorization.
(4) The operator did not cause or allow additional 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 § 87.209 (relating to criteria and schedule for release of bonds on pollution abatement areas).
(g) If four consecutive weekly determinations of pollution load, as required under § 87.206(3)(i) (relating to operational requirements), exceed one or more triggers, the permittee shall notify the Department and begin treatment within 30 days of the fourth sample in accordance with the treatment limits established in the permit.
(h) If the Department determines, through analysis of any data submitted pursuant to the monitoring requirements or any data collected by the Department, that there has been pollution loading degradation at any of the monitoring points or hydrologic units, the Department will notify the permittee accordingly. The permittee shall begin treatment within 30 days in accordance with the treatment limits established in the permit.
(i) Any pre-existing pollutional discharge which is an encountered discharge shall be treated to the effluent limitations in the permit until the discharge is no longer encountered.
(j) For the purposes of determining applicable effluent limitations, a discharge will continue to be deemed to be an encountered discharge until the surface mining area which has been disturbed and which contributes to the discharge has been backfilled and regraded, and revegetation work has started.
§ 87.209. Criteria and schedule for release of bonds on pollution abatement areas.
(a) The Department will release up to 60% of the amount of bond for the authorized pollution abatement area if the applicant demonstrates and the Department finds that:
(1) The surface coal mining 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 coal mining: general) and this chapter except as specifically modified by this subchapter.
(2) The operator has satisfactorily completed backfilling, regrading and drainage control under 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 ground and surface water monitoring conducted by the permittee under § 87.206(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 or mining the pollution abatement area.
(b) The Department will release an additional amount of bond for the authorized pollution abatement area but retain an amount sufficient to cover the cost to the Department of re-establishing vegetation if completed by a third party if the operator demonstrates and the Department finds that:
(1) The operator has replaced the topsoil or material conserved under § 87.97(d) (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 § 87.205(a)(5) (relating to approval or denial).
(2) The operator has not caused or contributed to surface water pollution or groundwater degradation by reaffecting or mining the pollution abatement area.
(3) The operator has complied with one of the following:
(i) Achieved the actual improvement of the baseline pollution load described in the approved pollution abatement plan and shown by ground and surface water monitoring conducted by the permittee for the time provided in the pollution abatement plan after completion of backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in § 87.205(a)(5).
(ii) Achieved the following:
(A) At a minimum has not caused degradation of the baseline pollution load as shown by ground and surface water monitoring conducted by the operator or the Department for one of the following:
(I) For the 12 months prior to the date of application for bond release and until the bond release is approved under subsection (b), if backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in § 87.205(a)(5) have been completed.
(II) If treatment has been initiated at any time after initial bond release under subsection (a) and § 87.207(e) (relating to treatment of discharges), for 12 months from the discontinuance of treatment under § 87.207(d), if backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in § 87.205(a)(5) have been completed.
(B) Conducted the measures provided in the approved pollution 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 or the elimination of public health and safety problems by remining 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 applicant demonstrates and the Department finds that:
(1) The operator has successfully completed the approved pollution abatement and reclamation plans, and the pollution abatement area is capable of supporting the postmining land use approved under § 87.159 (relating to postmining 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 § 87.207(e) for 5 years from the discontinuance of treatment under § 87.207(d).
(4) The applicable liability period has expired under § 86.151 (relating to period of liability).
§ 87.210. Effluent limitations.
(a) Approval and incorporation into permit. The pollution abatement plan for the pollution abatement area must be approved by the Department and incorporated into the permit as an effluent limitation.
(b) Implementation of best management practices. The best management practices (BMP) in the pollution abatement plan shall be implemented as specified in the plan.
(c) Pre-existing discharges.
(1) Except as provided in subsection (d), the following effluent limits apply to pre-existing discharges:
Parameter Effluent Limit Total Iron May not exceed baseline loadings (as determined by this subchapter). Total Manganese May not exceed baseline loadings (as determined by this subchapter). Acidity, Net May not exceed baseline loadings (as determined by this subchapter). Suspended Solids During remining and reclamation, may not exceed baseline loadings (as determined by this subchapter). Prior to bond release, the pre-existing discharge must meet the applicable standards for suspended solids or settleable solids in § 87.102 (relating to hydrologic balance: effluent standards). (2) A pre-existing discharge is exempt from meeting standards in § 87.102 for suspended solids and settleable solids when the Department determines that the standards are infeasible or impractical based on the site-specific conditions of soil, climate, topography, steep slopes or other baseline conditions provided that the operator demonstrates that significant reductions of suspended solids and settleable solids will be achieved through the incorporation of sediment control BMPs into the pollution abatement plan as required under subsection (a).
(d) In-stream requirements.
(1) If the Department determines that it is infeasible to collect samples for establishing the baseline pollutant levels under paragraph (4) and that remining will result in significant improvement that would not otherwise occur, the permit applicant shall establish an in-stream baseline concentration at a suitable point downstream from the remining operation, unless the Department waives the sampling requirement under paragraph (5) and the numeric effluent limitations in subsection (c)(1) do not apply.
(2) The in-stream baseline period must include, at a minimum, twice monthly monitoring for a minimum of a 1-year period and must adequately represent the seasonal range and median pollutant concentrations.
(3) Upon issuance of a surface mining permit, the operator shall continue, at a minimum, monthly monitoring of pollutant concentrations at the in-stream monitoring point referenced in paragraph (1), and make a determination as to whether or not there has been degradation of in-stream water quality.
(i) This determination shall be made on a quarterly basis and for each year defined as each consecutive 12-month period.
(ii) The operator is not required to treat individual pre-existing sources of pollution except as may be needed to maintain the in-stream baseline concentration.
(iii) Unless the operator can demonstrate to the satisfaction of the Department that the degradation was the result of factors that are not related to the remining, the operator shall treat one or more pre-existing pollutional discharges or undertake other pollution abatement measures to restore or improve the in-stream pollutant concentration to its baseline conditions.
(4) Pre-existing discharges for which it is infeasible to collect samples for determination of baseline pollutant levels include, but are not limited to:
(i) Discharges that exist as a diffuse groundwater flow that cannot be assessed by the collection of samples.
(ii) A base flow to a receiving stream that cannot be monitored separate from the receiving stream.
(iii) A discharge on a steep or hazardous slope that is inaccessible for sample collection.
(iv) A number of pre-existing discharges so extensive that monitoring of individual discharges is infeasible.
(5) When in-stream monitoring is not indicative of the impact of remining, the in-stream monitoring requirement may be waived by the Department. In-stream monitoring is not indicative of the impact of remining in circumstances including, but not limited to, the following:
(i) Remining sites in drainage areas exceeding 10 square miles.
(ii) Remining sites in watersheds where there are other influences on the in-stream water quality that make it impossible to establish the cause of water quality changes.
(iii) Remining sites where the Q7-10 stream flow is zero.
(e) Limits. Pollutants for which there are not effluent limitations established in § 87.102 may be eligible for limits established under this subchapter.
(f) Applicability of standards. Section 87.102 applies to a pre-existing discharge that is:
(1) Intercepted by surface mining activities.
(2) Commingled with waste streams from operational areas for the purposes of water treatment.
(g) Cessation of applicability of standards. Section 87.102 does not apply to a pre-existing discharge described in subsection (f) when the pre-existing discharge is no longer intercepted by surface mining activities or is no longer commingled with waste streams from operational areas for the purposes of water treatment.
(h) Bond release. The effluent limitations in this subchapter apply to pre-existing discharges until bond release under the procedures in Chapter 86 (relating to surface and underground coal mining: general).
§ 87.211. Baseline determination and compliance monitoring for pre-existing discharges at remining operations.
(a) The procedures in this section shall be used for determining site-specific baseline pollutant loadings, and for determining whether discharge loadings during coal remining operations have exceeded the baseline loading. A monthly (single-observation) procedure and an annual procedure shall be applied.
(b) At least one sample result per month shall be obtained for 12 months to characterize pollutant loadings for:
(1) Baseline determination.
(2) Each annual monitoring period. It is required that at least one sample be obtained per month for 12 months.
(c) Calculations described in this subchapter shall be applied to pollutant loadings.
(d) Each loading value shall be calculated as the product of a flow measurement and pollutant concentration taken on the same date at the same discharge sampling point using standard units of flow and concentration.
(e) If the baseline concentration in a baseline sample is below the daily maximum effluent limits established in § 87.102 (relating to hydrologic balance: effluent standards), the baseline sample concentration may be replaced with daily maximum effluent limit for the purposes of some of the statistical calculations in this subchapter.
(f) The substituted values should be used for all methods in this subchapter except for:
(1) The calculation of the interquartile range (R) in Method 1 for the annual trigger (Step 3).
(2) Method 2 for the single observation trigger (Step 3).
(g) The interquartile range (R) is calculated as the difference between the quartiles M-1 and M1; the values for quartiles M-1 and M1 should be calculated using actual loadings (based on measured concentrations) when they are used to calculate the interquartile range (R).
§ 87.212. Procedure for calculating and applying a single-observation (monthly) trigger.
(a) This section contains two alternative methods for calculating a single-observation trigger. One method must be proposed by the applicant to be approved and applied by the Department for a remining permit.
(b) Method 1 for calculating a single observation trigger (L) is accomplished by completing the following steps:
(1) Count the number of baseline observations taken for the pollutant of interest. Label this number n. To sufficiently characterize pollutant loadings during baseline determination and during each annual monitoring period, it is required that at least one sample result be obtained per month for 12 months.
(2) Order all baseline loading observations from lowest to highest. Let the lowest number (minimum) be x(1), the next lowest be x(2), and so forth until the highest number (maximum) is x(n).
(3) If fewer than 17 baseline observations were obtained, the single observation trigger (L) will equal the maximum of the baseline observations (x(n)).
(4) If at least 17 baseline observations were obtained, calculate the median (M) of all baseline observations. If n is odd, then M equals x(n/2+1/2). If n is even, then M equals 0.5* (x(n/2) + x(n/2+1)).
(5) Next, calculate M1 as the median of the subset of observations that range from the calculated M to the maximum x(n); that is, calculate the median of all x larger than or equal to M.
(6) Next, calculate M2 as the median of the subset of observations that range from the calculated M1 to x(n); that is, calculate the median of all x larger than or equal to M1.
(7) Next, calculate M3 as the median of the subset of observations that range from the calculated M2 to x(n); that is, calculate the median of all x larger than or equal to M2.
(8) Finally, calculate the single observation trigger (L) as the median of the subset of observations that range from the calculated M3 to x(n).
(9) When subsetting the data for each of the steps in paragraphs (5)—(8), the subset should include all observations greater than or equal to the median calculated in the previous step. If the median calculated in the previous step is not an actual observation, it is not included in the new subset of observations. The new median value will then be calculated using the median procedure, based on whether the number of points in the subset is odd or even.
(c) The method for applying the single observation trigger (L) to determine when the baseline level has been exceeded is as follows:
(1) If two successive monthly monitoring observations both exceed L, immediately begin weekly monitoring for 4 weeks (four weekly samples).
(2) If three or fewer of the weekly observations exceed L, resume monthly monitoring.
(3) If all four weekly observations exceed L, the baseline pollution loading has been exceeded.
(d) Method 2 for calculating a single observation trigger (L) is accomplished by completing the following steps:
(1) Follow Method 1 in subsection (b) to obtain M1 (the third quartile, that is, the 75th percentile).
(2) Calculate M-1 as the median of the baseline data which are less than or equal to the sample median M.
(3) Calculate interquartile range, R = (M1 − M-1).
(4) Calculate the single observation trigger L as L = M1 + 3 * R.
(5) If two successive monthly monitoring observations both exceed L, immediately begin weekly monitoring for 4 weeks (four weekly samples).
(6) If three or fewer of the weekly observations exceed L, resume monthly monitoring.
(7) If all four weekly observations exceed L, the baseline pollution loading has been exceeded.
§ 87.213. Procedure for calculating and applying an annual trigger.
(a) This section contains two alternative methods for calculating the annual trigger. One method shall be proposed by the applicant to be approved and applied by the Department for a remining permit.
(b) Method 1 for calculating and applying an annual trigger (T) is accomplished by completing the following steps:
(1) Calculate M and M1 of the baseline loading data as described under Method 1 for the single observation trigger in § 87.212(b) (relating to procedure for calculating and applying a single-observation (monthly) trigger).
(2) Calculate M-1 as the median of the baseline data which are less than or equal to the sample median M.
(3) Calculate the interquartile range, R = (M1 − M-1).
(4) The annual trigger for baseline (Tb) is calculated as
Tb=M+(1.815*R)/SQRT(n)
where n is the number of baseline loading observations.
(5) To compare baseline loading data to observations from the annual monitoring period, repeat the steps in paragraphs (1)—(3) for the set of monitoring observations. Label the results of the calculations M` and R`. Let m be the number of monitoring observations.
(6) The subtle trigger (Tm) of the monitoring data is calculated as
Tm=M`(1.815*R`)/SQRT(m)
(7) If Tm > Tb, the median loading of the monitoring observations has exceeded the baseline loading.
(c) Method 2 for calculating and applying an annual trigger (T) is accomplished by completing the following steps:
(1) Let n be the number of baseline loading observations taken, and let m be the number of monitoring loading observations taken. To sufficiently characterize pollutant loadings during baseline determination and during each annual monitoring period, it is required that at least one sample result be obtained per month for a period of 12 months.
(2) Order the combined baseline and monitoring observations from smallest to largest.
(3) Assign a rank to each observation based on the assigned order: the smallest observation will have rank 1, the next smallest will have rank 2 and so forth, up to the highest observation, which will have rank n + m. If two or more observations are tied (have the same value), then the average rank for those observations should be used.
(4) Sum all the assigned ranks of the n baseline observations, and let this sum be Sn.
(5) Obtain the critical value (C) from Table 1.
(6) Compare C to Sn. If Sn is less than C, then the monitoring loadings have exceeded the baseline loadings.
(7) Critical values for the Wilcoxon-Mann-Whitney test are as follows:
(i) When n and m are less than 21, use Table 1. To find the appropriate critical value, match column with correct n (number of baseline observations) to row with correct m (number of monitoring observations).
Table 1—Critical Values (C) of the Wilcoxon-Mann-Whitney Test (for a one-sided test at the 0.001 significance level)
m
n
10 11 12 13 14 15 16 17 18 19 20 10 66 79 93 109 125 142 160 179 199 220 243 11 68 82 96 112 128 145 164 183 204 225 248 12 70 84 99 115 131 149 168 188 209 231 253 13 73 87 102 118 135 153 172 192 214 236 259 14 75 89 104 121 138 157 176 197 218 241 265 15 77 91 107 124 142 161 180 201 223 246 270 16 79 94 110 127 145 164 185 206 228 251 276 17 81 96 113 130 149 168 189 211 233 257 281 18 83 99 116 134 152 172 193 215 238 262 287 19 85 101 119 137 156 176 197 220 243 268 293 20 88 104 121 140 160 180 202 224 248 273 299
(ii) When n or m is greater than 20 and there are few ties, calculate an approximate critical value using the following formula and round the result to the next larger integer. Let N = n + m.
Critical Value=0.5*n*(N+1)−3.0902*SQRT(n*m(N+1)/12)
(iii) When n or m is greater than 20 and there are many ties, calculate an approximate critical value using the following formula and round the result to the next larger integer. Let S be the sum of the squares of the ranks or average ranks of all N observations. Let N = n + m.
Critical Value=0.5*n*(N+1)−3.0902*SQRT(V)
In the preceding formula, calculate V using:
V=(n*m*S)/(N*(N-1)−(n*m*(N+1)2/(4*(N−1))
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