RULES AND REGULATIONS

Title 25—ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[ 25 PA. CODE CHS. 86—90 ]

Federal Office of Surface Mining Reclamation and Enforcement Program Consistency

[50 Pa.B. 1508]
[Saturday, March 14, 2020]

 The Environmental Quality Board (Board) amends 25 Pa. Code Chapters 86—90 to read as set forth in Annex A. This final-form rulemaking primarily addresses inconsistencies between the Commonwealth's coal mining regulatory program and Federal regulations. This final-form rulemaking updates requirements to comply with the Federal coal mining regulations at 30 CFR Parts 700 through 955 (relating to mineral resources) and, for general program maintenance, includes additional revisions to correct typographical errors, organization names, statutory citations, remining requirements and the use of reference data for the sizing of stormwater control facilities.

 This final-form rulemaking was adopted by the Board at its meeting on November 19, 2019.

A. Effective Date

 This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.

B. Contact Persons

 For further information, contact William Allen, 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) 787-9376. 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'').

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); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. § 30.53b); section 7(b) of the Bituminous Mine Subsidence and Land Conservation Act (52 P.S. § 1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).

D. Background and Purpose

 This final-form rulemaking addresses inconsistencies between the Commonwealth's coal mining program and Federal requirements. The Board also includes in this final-form rulemaking additional revisions for general program maintenance, such as correcting typographical errors and updating organization names, statutory citations, remining requirements and the use of reference data for the sizing of stormwater control facilities.

Required Program Amendments

 The Federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. §§ 1201—1328) (Federal SMCRA) ''establish[ed] a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.'' See 30 U.S.C.A. § 1202(a). Federal SMCRA authorizes the Secretary of the Interior, through the Office of Surface Mining Reclamation and Enforcement (OSM), to administer the programs for controlling surface coal mining operations, and to review and approve or disapprove State programs for controlling the same. See 30 U.S.C.A. § 1211(c)(1).

 Federal SMCRA allows a state to assume jurisdiction over the regulation of surface coal mining and reclamation operations if the state can administer that program according to Federal standards. See 30 U.S.C.A. § 1253. When a state program is approved by OSM, the state achieves ''primacy'' over the regulation of its surface coal mining program. The Commonwealth achieved primacy in 1982. See 47 FR 33,050, 33,076 (July 30, 1982). To keep its jurisdiction over the regulation of coal surface mining activities, the Commonwealth must maintain a State program in accordance with the requirements of Federal SMCRA, 30 U.S.C.A. § 1255(a), and with ''rules and regulations consistent with regulations issued by the Secretary.'' See 30 U.S.C.A. § 1253(a)(1) and (7).

 OSM identified several of the Commonwealth's regulations that require revision because they are not as effective as the Federal requirements. The Commonwealth is therefore required to revise existing regulations so that they are no less stringent than the Federal standards. See 30 CFR Part 938 (relating to Pennsylvania). The required program amendments are as follows:

 Augmented Seeding

 OSM disapproved of the use of the term ''augmented'' in the last sentence of § 86.151(d) (relating to period of liability) because it found it to be less stringent than the Federal requirement for the bond liability period. See 30 CFR 938.12(d) (relating to State statutory, regulatory, and proposed program amendment provisions not approved). According to the OSM, ''augmented'' seeding by definition restarts the period for liability. However, the Commonwealth's proposed regulation had referred to a normal husbandry practice (per OSM) as augmented seeding that would not restart the period for which an operator is liable. Therefore, this final-form rulemaking deletes the term ''augmented'' from § 86.151(d) to match OSM's understanding of seeding that does not restart the period of liability.

 Bonding

 OSM required the Commonwealth to revise its regulations relating to the valuation of certain collateral bonds at § 86.158(b) (relating to special terms and conditions for collateral bonds). OSM's requirements are as follows:

Pennsylvania shall amend its rules at § 86.158(b)(1) or otherwise amend its program to be no less effective than 30 CFR 800.21(a)(2) by requiring that the value of all government securities pledged as collateral bond shall be determined using the current market value.

Pennsylvania shall amend § 86.158(b)(2) or otherwise amend its program to be no less effective than 30 CFR 800.21(e)(1) by requiring that the provisions related to valuation of collateral bonds be amended to be subject to a margin, which is the ratio of the bond value to the market value, and which accounts for legal and liquidation fees, as well as value depreciation, marketability, and fluctuations which might affect the net cash available to the regulatory authority in case of forfeiture.

Pennsylvania shall amend § 86.158(b)(3) or otherwise amend its program to be no less effective than 30 CFR 800.21(e)(2) to ensure that the bond value of all collateral bonds be evaluated during the permit renewal process to ensure that the collateral bond is sufficient to satisfy the bond amount requirements.

 30 CFR 938.16(m)—(o).

 To address these issues, this final-form rulemaking includes revisions to § 86.158(b). In subsection (b)(1), ''may'' is changed to ''will,'' requiring the Department to be the entity responsible for valuing collateral at its current market value not at face value. This final-form rulemaking also adds ''less any legal and liquidation costs'' to subsection (b)(2) and revises subsection (b)(3) to require the posting of any needed additional bond amount with the permit renewal, which is at least every 5 years.

 Haul Roads

 OSM also required that the Commonwealth revise its regulations at § 88.1 (relating to definitions) regarding the use of public roads as part of an anthracite mining operation:

Pennsylvania shall submit a proposed amendment to § 88.1 to require that the definition of haul road include all roads (including public roads) that are used as an integral part of the coal mining activity and to clarify that the area of the road includes the entire area within the right-of-way, including roadbeds, shoulders, parking and side areas, approaches, structures, and ditches.

 30 CFR 938.16(mmm).

 This final-form rulemaking adds the following to the definition of a haul road at § 88.1: ''The term includes public roads that are used as an integral part of the coal mining activity.'' OSM's requirement to clarify that the activity includes the right-of-way and other features of the road does not require an additional revision in this final-form rulemaking. The elements OSM requires are already included in the existing definition of ''Road'' at § 88.1, and the definition of ''Road'' includes a reference to ''haul roads.''

General Consistency Amendments

 Unrelated to issues of consistency with Federal law, the Department and various third parties have identified several typographical, citation and reference errors within the Department's regulations, outdated source material, and areas of the program that require more clarity. These general consistency amendments are as follows:

 Effluent Limitations for Bituminous Underground Mines

 The Commonwealth currently lists effluent limitations for bituminous underground mines at § 89.52 (relating to water quality standards, effluent limitations and best management practices). Subsection (f) includes alternative effluent limitations for underground mine discharges that can be adequately treated using passive treatment technology. However, the Federal effluent limit guidelines at 40 CFR Part 434 (relating to coal mining point source category BPT, BAT, BCT limitations and new source performance standards) only include alternative limits for passive treatment systems applicable to surface mines instead of underground mines. When the Board revised the regulations to add subsection (f) related to underground mines, this distinction was missed. This discrepancy came to light during a recent evaluation comparing the Federal effluent limit guidelines with the requirements in § 89.52.

 Therefore, this final-form rulemaking eliminates the alternative effluent limits for underground mine passive treatment systems from subsection (f).

 Temporary Cessation

 The Commonwealth's regulations regarding the temporary cessation of operations for bituminous surface mines included a 180-day upper limit on the amount of time that an operation can be in temporary cessation status. The Federal rules that address temporary cessation at 30 CFR 816.131 (relating to cessation of operations: temporary) do not include an upper limit on the duration of temporary cessation status. Therefore, this final-form rulemaking includes revisions to § 87.157 (relating to cessation of operations: temporary) removing the upper time limit.

 Temporary cessation for anthracite coal mines is addressed at §§ 88.131, 88.219 and 88.332 (relating to cessation of operations: temporary) in regards to anthracite surface mines; anthracite bank removal; and anthracite coal refuse disposal. Sections 88.131 and 88.219 do not include an upper time limit for temporary cessation status. Section 88.332, applicable to anthracite coal refuse disposal, includes a 1-year upper time limit.

 To ensure temporary cessation for anthracite coal mines is regulated the same way as bituminous mines, this final-form rulemaking revises §§ 87.157, 88.131 and 88.219 to include the same suite of revised requirements related to temporary cessation status, including a requirement for operators to submit information to the Department, consistent with 30 CFR 816.131, and triggers for when the status ends because of reactivation, or terminates through the permittee's failure to comply with the law, regulations or the permit.

 This final-form rulemaking also requires permittees to submit a timely renewal application when applicable. Amendments included in this final-form rulemaking do not lessen environmental protection related to surface mining because the performance standards in existing regulations focus on pollution prevention. The Department provides the same attention to sites in temporary cessation status as it does to active sites, through monthly inspections to ensure compliance with performance standards and updates to bond amounts, as appropriate.

 Because the Coal Refuse Disposal Control Act (52 P.S. §§ 30.51—30.66) includes the 1-year upper time limit, this requirement is retained in § 88.332.

 Definition of Surface Mining Activities

 This final-form rulemaking replaces the existing definition of ''surface mining activities'' in §§ 86.1 and 87.1 (relating to definitions) with a cross-reference to the Federal definition of ''surface mining activities'' from 30 CFR 701.5 (relating to definitions) (which in turn refers to ''surface coal mining and reclamation operations'' defined at 30 CFR 700.5 (relating to definitions)). This amendment is in response to issues informally raised by OSM related to the scope of the existing definition.

 Civil Penalties

 As outlined in § 86.194 (relating to system for assessment of penalties), the Department uses a system for assessment to determine the amount of a civil penalty that depends on the specific circumstances of the violation. Currently, § 86.193(b) (relating to assessment of penalty) requires the Department to assess a civil penalty if the penalty the Department calculates equals $1,100 or more. Correspondingly, § 86.193(c) affords the Department discretion whether to assess a civil penalty that equals less than $1,100. The threshold dollar amount of $1,100 in § 86.193(b) that triggers a mandatory assessment is based on the Federal civil penalty program found at 30 CFR 723 (relating to civil penalties).

 The Federal program calculates penalty amounts by using a point system. Under this point system, a violation is given a certain number of points based on its circumstances and a formula is then used to equate those points to a dollar value. A violation that amounts to 30 points or more under the Federal system requires a penalty. Periodically, the Federal government revises the dollar amounts on the table, while the point threshold that triggers a mandatory penalty assessment remains fixed.

 To address the fluctuating dollar amount from the Federal program's penalty calculations, this final-form rulemaking includes references to 30 CFR 723.12 (relating to when penalty will be assessed) and 723.14 (relating to determination of amount of penalty) instead of listing a specific penalty amount, so the Commonwealth's threshold for mandating the assessment of a penalty will always correctly reflect the Federal point system trigger.

 Administrative Requirements

 Two differences between the Commonwealth's requirements and the Federal requirements came to light during the recent development of the ePermitting application for new bituminous surface mines.

 First, § 86.31 (relating to public notices of filing of permit applications) requires notification by registered mail to the municipality where mining is proposed. This requirement for registered mail is not in the Federal rules. Therefore, this final-form rulemaking revises § 86.31(c)(1) to retain the notification but to delete the registered mail requirement. In addition to consistency with the Federal regulations, this proposal will allow for electronic notice in cases where it is appropriate. This update will allow the Department flexibility to use registered mail and electronic notices as needed.

 Second, § 86.62(a)(3) (relating to identification of interests) requires the date of issuance of the Mine Safety and Health Administration Identification Number to be provided in an application. This date of issuance is not required under the Federal rules. Therefore, this final-form rulemaking deletes the date of issuance from this subsection.

 Employee Financial Interest Reporting Form

 Section 86.238 (relating to what to report) lists an old OSM form number for reporting employee financial interests. The current form number is OSM Form 23. Therefore, this final-form rulemaking changes ''Form 705-1'' to ''Form 23.''

 Storm Events

 Sections 87.103, 88.93, 88.188, 88.293 and 89.53 each include a table of data representing the amount of precipitation for a 24-hour storm event with a recurrence interval of 10 years on a county-by-county basis. Section 90.103 (relating to precipitation event exemption) includes tables of similar data representing the 1-year and 10-year rainfall events. The Department derived the data in these tables from the climatological data available in the early 1980s, which only provided data for a limited number of stations in each county.

 The regulations include the highest value in this data for each county. In subsequent years, additional data has been gathered and the National Oceanic and Atmospheric Administration (NOAA) has developed an online tool which provides the precipitation amount for various storm events for any location in the Commonwealth, currently available at https://hdsc.nws.noaa.gov/hdsc/pfds/.

 Generally, the amount of precipitation for each storm event is lower than what is currently listed in the tables in the regulations. Therefore, in many cases, stormwater control facilities are over-designed and require unnecessary earth disturbance. This final-form rulemaking removes the tables and replaces them with a general reference to data available through NOAA or an equivalent resource. This will result in properly-sized stormwater controls and reduced costs for mine operators.

 Remining Financial Guarantees

 The Department identified and established best practices for managing accounts in the Remining Financial Guarantee (RFG) Program, similar to those established for the Land Reclamation Financial Guarantee Program. To provide stability to the RFG Program, the first best practice designates a monetary threshold and a reserve in the account. The designated threshold establishes the program limits while the reserve provides funds to pay for costs incurred when the financial guarantee program is used for land reclamation.

 This final-form rulemaking includes an addition to § 86.281(b) (relating to financial guarantees to insure reclamation—general) to describe the process used to determine the amount of an individual remining financial guarantee. This final-form rulemaking also includes revisions to § 86.281(c) to clarify that the designated amount is maintained at the program level rather than on a permit-by-permit basis. This final-form rulemaking amends § 86.281(d) to refer to the designated amount when describing the permit limit, the operator limit, and the program limit and § 86.281(f) to describe the reserve.

 An additional best practice targets risk management. For example, one method to manage risk includes limiting the participation of operators who previously failed to make the required payments on a timely basis. This final-form rulemaking revises § 86.282(a)(4) (relating to participation requirements) to add that to participate, the operator may not have been previously issued a notice of violation relating to maintaining bonds, including a missing or late payment. The requirement includes a 3-year window so as not to permanently prohibit participation for an operator who had a missing or late payment.

 The existing regulatory language at § 86.284(d) (relating to forfeiture) differs from the statutory language in section 4.12 of the Pennsylvania Surface Mining Conservation and Reclamation Act (PA SMCRA) (52 P.S. § 1396.4l(d)), which has resulted in confusion when interpreting the requirement. This final-form rulemaking revises § 86.284(d) to read the same as PA SMCRA.

 Natural Resources Conservation Service

 The existing regulations include numerous references to the Soil Conservation Service. This agency changed its name to the Natural Resources Conservation Service. This final-form rulemaking corrects these references.

 Conservation District

 Section 86.189(b)(4) (relating to reclamation of bond forfeiture sites) includes a reference to the Soil Conservation District. The current name of the agency to which this refers is the Conservation District. This final-form rulemaking makes this revision.

 Chapter 92a Reference Correction

 The existing regulations include references to Chapter 92. In 2010, the Board reserved Chapter 92 and replaced it with Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance). This final-form rulemaking corrects these references throughout Chapters 86—90.

 Department Reference

 Section 86.232 (relating to definitions) includes a reference to the Department of Environmental Resources. This final-form rulemaking updates this reference to be the Department of Environmental Protection.

 Water Quality Standards Implementation

 In 2000, the Board finalized Chapter 96 (relating to water quality standards implementation). The mining regulations have not been updated to include reference to Chapter 96. This final-form rulemaking corrects this by including references to Chapter 96 in §§ 87.102, 88.92, 88.187, 88.292, 89.52 and 90.102.

 Coal Ash and Biosolids

 Section 86.54 (relating to public notice of permit revision) includes the terms ''fly ash disposal'' and ''sewage sludge.'' Section 87.100 (relating to topsoil: nutrients and soil amendments) also uses the terms ''fly ash'' and ''sewage sludge.'' The correct term instead of ''fly ash'' is ''coal ash,'' which is defined in § 287.1 (relating to definitions). This definition of coal ash includes fly ash and other materials. In addition, disposal of coal ash is not allowed in the context of active mining sites. Coal ash may be beneficially used to enhance reclamation under Chapter 290 (relating to beneficial use of coal ash). Similarly, ''biosolids'' is a term which includes reference to ''sewage sludge,'' so it is more appropriate to use. Therefore, this final-form rulemaking revises §§ 86.54 and 87.100 to correct these terms to instead refer to ''coal ash'' and ''biosolids.''

 Anthracite Mine Operators Emergency Bond Fund

 In 1992, section 4.7 of PA SMCRA, (52 P.S. § 1396.4g), was revised to allow anthracite surface mining operators to participate in the Anthracite Mine Operators Emergency Bond program. Prior to this, participation was limited to only deep mine operators. This final-form rulemaking changes the references to ''deep mine'' to be ''mine'' in § 86.162a (relating to Anthracite Mine Operators Emergency Bond Fund). This clarifies that not only deep mines are eligible to participate in the Anthracite Mine Operators Emergency Bond program.

 Coal Refuse Disposal Site Selection

 In 2010, section 4.1 of the Coal Refuse Disposal Control Act, (52 P.S. § 30.54a), was amended to add to the list of preferred sites for siting coal refuse disposal facilities. The amendment added the following language: ''An area adjacent to or an expansion of an existing coal refuse disposal site.'' This final-form rulemaking reflects this statutory change in § 90.201 (relating to definitions).

 Reviews of active permits

 Section 86.51 (relating to reviews of active permits) includes the phrase ''. . . a review of the permit shall be no less frequent than the permit midterm of every 5 years, whichever is more frequent.'' The ''of'' underlined previously should be ''or.'' This final-form rulemaking corrects this error.

 Mine Safety and Health Administration

 Section 86.84 (relating to applications for assistance) includes a reference to the Mining Enforcement and Safety Administration. The reference should be the Mine Safety and Health Administration. This final-form rulemaking corrects this error.

 ''Road'' Definition

 The definition of ''road'' at § 88.1 begins with ''A surface right-of-way for purposes of travel by land vehicles used in coal exploration of surface coal mining and reclamation operations.'' The ''of'' underlined previously should be ''or.'' This final-form rulemaking corrects this error.

 Remining Program

 After the Board finalized remining regulations in October 2016, discrepancies in the citations were identified in Chapter 88 (relating to anthracite coal). In § 88.502(ii) (relating to definitions), the citation to § 88.295(b)—(g) (relating to hydrologic balance: diversions and conveyances) is incorrect. The correct citation is § 88.295(b)—(i). Similarly, in § 88.507(c) (relating to treatment of discharges) the citations are incomplete. The correct citations are §§ 88.95(b)—(g), 88.190(b)—(g) (relating to hydrologic balance: diversions) and 88.295(b)—(i). Finally, § 88.508 (relating to request for bond release) lists ''Section 86.172(a), (b) and (d).'' Section 90.308 (relating to request for bond release) also refers to § 86.172(d) (relating to criteria for release of bond). There is no subsection 86.172(d). This final-form rulemaking includes revisions to address each of these errors.

E. Summary of Changes to the Proposed Rulemaking

 Section 86.1 and 87.1 Changes

 The language incorporating the definition of ''surface mining activities'' from 30 CFR 701.5 is revised to include language consistent with other Department regulations to denote that the Federal definition is adopted in its entirety.

 Section 86.31 Changes

 This final-form rulemaking includes several revisions from the proposed rulemaking. The Board made the following two revisions to § 86.31 in response to comments on the proposed rulemaking. First, the Board will retain the existing language listing a ''city, borough, incorporated town or township,'' replacing the proposed term ''municipality.'' Second, the Board specified that the notice to local governments will be written notice.

 The Board made several additional revisions for clarification and consistency with the Commonwealth's statutes and regulations. Sections 86.54 and 87.100 were revised in the proposed rulemaking to replace the term ''sewage sludge'' with the term ''biosolids.'' To be consistent with Chapter 271 (relating to municipal waste management—general provisions) and the proposed amendment to § 87.100, the term ''residential septage'' is also added in this final-form rulemaking to § 86.54.

 Section 88.107 Changes

 The proposed rulemaking deleted language from § 88.107(g) (relating to hydrologic balance: water rights and replacement) regarding the recovery of ''attorney fees and expert witness fees'' by the operator because of the act of December 20, 2000 (P.L. 980, No. 2000-138). Thisact created a new scheme for recovery of litigation costs in mining proceedings at 27 Pa.C.S. Chapter 77 (relating to costs and fees) in order to conform to Federal law. The proposed change also reflected a similar amendment to § 87.119(g) (relating to hydrologic balance: water rights and replacement) in 2011. See 41 Pa.B. 3084 (June 18, 2011).

 The act of December 20, 2000, also repealed section 4.2(f)(5) of PA SMCRA, which provided the statutory authority for these regulations in their entirety, and not only with respect to litigation costs. OSM did not approve either § 87.119(g) or § 88.107(g) because the repeal of section 4.2(f)(5) of PA SMCRA left the regulations with no remaining statutory authority to support them. See 30 CFR 938.12(c)(6) and 70 FR 25472 and 25484 (May 13, 2005). In order to streamline OSM's review on this topic, the change to § 88.107 in this final-form rulemaking will not be made, and revisions consistent with 27 Pa.C.S. Chapter 77 and the repeal of section 4.2(f)(5) of PA SMCRA will be incorporated in proposed rulemaking # 7-545, regarding water supply replacement, adopted by the Board on June 18, 2019. The proposed rulemaking was published in the Pennsylvania Bulletin, opening the public comment period on November 2, 2019. The public comment period closed on December 2, 2019.

 Section 88.332 Changes

 Because the Coal Refuse Disposal Control Act includes a 1-year upper time limit related to requirements triggered by temporary cessation, the proposal to remove this time limit from § 88.332 has been undone. To improve clarity, this final-form rulemaking retains the current language and inserts a reference to the specific section of the Coal Refuse Disposal Control Act where this requirement is stated.

 Section 89.52 Changes

 In § 89.52(f)(3) (relating to water quality standards, effluent limitations and best management practices), the word ''Any'' which was proposed at the beginning of the section is being revised to be ''A'' for clarity.

F. Summary of Comments and Responses on the Proposed Rulemaking

 The following summaries are based on comments that were received from three public commentators and the Independent Regulatory Review Commission (IRRC).

 Related to Haul Roads

 One commenter was concerned that the term ''public roads,'' as used in the revised definition of ''Haul roads'' in § 88.1, is very broad and could be used to impose additional bonding and other fees on common use public roads that are shared by thousands of other business concerns. Because of these concerns, they requested that the Board include language in the preamble of the regulation to address these concerns.

 In response to this comment, the language ''integral part of the coal mining activity'' is intended to address mining activities that normally would not occur on a public road. This includes any use of the public road by off-road vehicles or equipment that cannot be licensed for on-road use. The length of the public road to be defined as a haul road will be limited to the length of the public road used for travel by vehicles or equipment that are an integral part of the coal mining activity. Any use of a public road by licensed on-road vehicles is not considered to be an integral part of the coal mining activity for the purpose of the definition of ''haul road.''

 Related to Administrative Requirements

 Another commenter pointed out that § 86.31 requires notification by registered mail and that the Federal rules do not change this requirement. The commenter asserts that the proposed regulation would revise § 86.31(c)(1) to retain the notice requirement but delete language that requires the notice be sent by registered mail. The commenter contends that this notification is too important to not notify by registered mail. The commenter states that since the Federal policy does not require electronic notification, the existing notification by registered mail should be retained. IRRC additionally asked the Board to explain the reasonableness of not requiring registered mail, under what circumstances electronic notice is appropriate, and how the new notification requirement adequately protects public health, safety and welfare.

 In response to this comment, the Federal requirement at 30 CFR 773.6(a)(3) (relating to public participation in permit processing) requires: ''[T]he regulatory authority shall issue written notification indicating the applicant's intention to mine the described tract of land, the application number or other identifier, the location where the copy of the application may be inspected, and the location where comments on the application may be submitted.'' The Federal requirement is to provide written notice to the local government agency and does not specify the means by which written notice is given.

 The regulation has been revised to require written notification to be consistent with the Federal requirement and allow the Department flexibility to use mail or electronic notice. The Department may provide notice by registered mail on a case-by-case basis. Authorizing the Department to provide notice by means other than registered mail is reasonable because it implements part of the Department's ''Permit Reform Initiative'' to reduce permit backlogs, modernize the permitting process, and better utilize technology to improve both oversight and efficiency. As notice becomes automated through the Department's electronic permitting system, parties will receive notice of completed permit applications in a more timely manner, and the resources the Department saves can be committed to other work directed at protecting the public health, safety and welfare. The Department does not believe that the regulation requires standards to determine when electronic notice is appropriate because, in practice, the method of written notice should not be an issue. Local government agencies are generally involved very early in the application process (before a complete application is submitted). The transition to electronic notification requires interaction and cooperation between the Department and the local government in order to establish the appropriate contacts. This interaction will provide the opportunity for the local government to express any concerns they have about the process at that time.

 IRRC further noted that the Annex proposed to delete the phrase ''the city, borough, incorporated town or township'' and replace that language with ''the municipality.''IRRC points out that § 86.1 contains a definition of the term ''municipality'' that defines a municipality as, ''A county, city, borough, town, township, school district, institution or an authority created by any one or more of the foregoing.'' IRRC asked whether the Board intended to expand notification to all the entities listed under the definition of municipality.

 In response to this comment, the Federal Rule at 30 CFR 773.6(a)(3)(i) is to provide written notice to ''[l]ocal governmental agencies with jurisdiction over or an interest in the area of the proposed surface coal mining and reclamation operation. . . .'' The Department interprets this requirement to apply to general purpose units of government, specifically, the city, borough, incorporated town or township. The amendment in the proposed rulemaking was not intended to expand the notification requirement to counties or special purpose local government units in addition to relevant authorities included under § 86.31(c)(2) (''Sewage and water treatment authorities that may be affected by the activities.'') and (c)(3) (''Governmental planning agencies with jurisdiction to act with regard to land use, air or water quality planning in the area of the proposed activities.''). Language in this final-form rulemaking is therefore revised by reverting to the existing language listing ''the city, borough, incorporated town or township.''

 Related to the Regulatory Analysis Form

 IRRC also pointed out that the Regulatory Analysis Form indicates that no data was the basis of the proposed rulemaking, but that the data available through the NOAA online tool for precipitation events is referred to repeatedly in the proposed regulation, so the Board should clarify that the availability of the data from the NOAA tool is the basis for the revisions proposed.

 In response, the Regulatory Analysis Form has been revised to reflect the fact that the data available through the NOAA online tool was used as a basis for the regulation. The response includes a link to the web page where the tool is available.

 Related to Storm Events

 IRRC also asked about the term ''equivalent resources,'' which is used in several sections, relating to the determination of the size of storm events.

 In response to this comment, this term is intended to allow for continued reliance on the data in the case where there is a government reorganization, technological advance or other factor that would cause the specific description of the tool to be outdated. While this can be corrected through further rulemaking, the ''equivalent resources'' reference will provide continuity.

 In Support of the Regulatory Process

 One commentator acknowledged the collaborative process undertaken in developing the proposed regulations. In response, the Board acknowledges the comment.

Mining and Reclamation Advisory Board Collaboration

 The Department collaborated with the Mining and Reclamation Advisory Board's (MRAB) Regulation, Legislation and Technical (RLT) committee to develop the proposed rulemaking. This included discussion at several RLT committee meetings and with the full board.

 At its April 6, 2017, meeting, the MRAB voted to concur with the Department's recommendation that the proposed rulemaking move forward in the regulatory process. At its April 25, 2019, meeting, the MRAB voted to concur with the Department's recommendation that the final-form rulemaking move forward in the regulatory process.

G. Benefits, Costs and Compliance

 Benefits

 The revisions in this final-form rulemaking will resolve inconsistencies with Federal requirements, allow the Commonwealth to maintain program primacy, provide clarity to mine operators regarding compliance standards and result in properly-sized stormwater facilities. In some cases, the latter benefit will result in reduced costs, because current regulations may require larger facilities than necessary.

 Compliance costs

 None of the new or revised requirements are likely to increase costs. Due to the benefits described previously, this final-form rulemaking is likely to reduce costs. For example, this final-form rulemaking will result in properly-sized stormwater facilities. In many cases, this will result in reduced costs because the updated regulations may no longer require larger than necessary facilities.

 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 400 licensed surface coal mining operators in this Commonwealth, most of which are small businesses that will be subject to this regulation.

 Paperwork requirements

 This final-form rulemaking does not require additional paperwork.

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. This final-form rulemaking has minimal impact on pollution prevention since it is predominantly focused on updating regulations to reflect current Federal requirements, amendments to state statutes and references to citations, names and data sources.

I. Sunset Review

 The Board is not proposing a sunset date for these regulations, since they are needed for the Department to carry out its statutory authority. The Department will continue to closely monitor these regulations for their effectiveness and recommend updates to the Board as necessary.

J. Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on October 2, 2018, the Department submitted a copy of the notice of proposed rulemaking, published at 48 Pa.B. 6844 (October 27, 2018), to IRRC and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.

 Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on January 30, 2020, 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 January 31, 2020, and approved this final-form rulemaking.

K. Findings of the Board

 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 at 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).

 (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 proposal published at 48 Pa.B. 6844.

 (4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.

L. Order of the Board

 The Board, acting under the authorizing statutes, orders that:

 (1) The regulations of the Department, 25 Pa. Code Chapters 86, 87, 88, 89 and 90 are amended by amending §§ 86.1, 86.31, 86.51, 86.54, 86.62, 86.84, 86.151, 86.158, 86.162a, 86.189, 86.193, 86.232, 86.238, 86.281, 86.282, 86.284, 87.1, 87.53, 87.100, 87.102, 87.103, 87.112, 87.117, 87.155, 87.157, 87.177, 87.181, 88.1, 88.32, 88.92, 88.93, 88.102, 88.103, 88.106, 88.107, 88.129, 88.131, 88.187, 88.188, 88.193, 88.197, 88.198, 88.202, 88.217, 88.219, 88.292, 88.293, 88.302, 88.303, 88.306, 88.330, 88.332, 88.491, 88.493, 88.502, 88.507, 88.508, 89.52, 89.53, 89.59, 89.86, 89.112, 89.121, 89.122, 89.134, 90.22, 90.102, 90.103, 90.112, 90.113, 90.116, 90.159, 90.161, 90.165, 90.201 and 90.308, as set forth in Annex A, with ellipses referring to the existing text of the regulations.

 (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 Environmental Resources and Energy 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, as approved for legality and form, and deposit them with the Legislative Reference Bureau, as required by law.

 (5) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.

PATRICK McDONNELL, 
Chairperson

 (Editor's Note: See 50 Pa.B. 1001 (February 15, 2020) for IRRC's approval order.)

 Fiscal Note: Fiscal Note 7-532 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 86. SURFACE AND UNDERGROUND COAL MINING: GENERAL

Subchapter A. GENERAL PROVISIONS

§ 86.1. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

*  *  *  *  *

 Surface mining activities—Any activities meeting the definition of ''surface mining activities'' as it is defined at 30 CFR 701.5, which is adopted in its entirety and incorporated herein by reference.

*  *  *  *  *

Subchapter B. PERMITS

REVIEW, PUBLIC PARTICIPATION AND APPROVAL, DISAPPROVAL OF PERMIT APPLICATIONS AND PERMIT TERMS AND CONDITIONS

§ 86.31. Public notices of filing of permit applications.

*  *  *  *  *

 (c) Upon receipt of a complete application, the Department will publish notice of the proposed activities in the Pennsylvania Bulletin and send written notice to the following:

 (1) The city, borough, incorporated town or township in which the activities are located.

*  *  *  *  *

PERMIT REVIEWS, RENEWALS, REVISIONS AND TRANSFERS

§ 86.51. Reviews of active permits.

 (a) The Department will review each permit issued and outstanding during the term of the permit. This review shall occur at the discretion of the Department during the permit term except as required by § 87.175 (relating to variance to contouring). For permits of longer than 5-year terms, a review of the permit shall be no less frequent than the permit midterm or every 5 years, whichever is more frequent.

*  *  *  *  *

§ 86.54. Public notice of permit revision.

 A permit revision request shall be subject to the notice requirements of § 86.31 (relating to public notices of filing of permit applications) under the following circumstances:

 (1) For surface mining activities:

*  *  *  *  *

 (iii) The addition of coal refuse disposal, beneficial use of coal ash or biosolids, or residential septage for land reclamation to the operation.

*  *  *  *  *

MINIMUM REQUIREMENTS FOR LEGAL FINANCIAL COMPLIANCE AND RELATED INFORMATION

§ 86.62. Identification of interests.

 (a) Application information. An application shall contain the following information, except that the submission of a social security number is voluntary:

*  *  *  *  *

 (3) The name of the proposed mine and the Mine Safety and Health Administration (MSHA) Identification Number for the mine and all mine-associated structures that require MSHA approval.

*  *  *  *  *

Subchapter C. SMALL OPERATOR ASSISTANCE PROGRAM

§ 86.84. Applications for assistance.

 (a) An application for assistance shall contain the following information:

*  *  *  *  *

 (3) A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant under this section. For each location, the schedule shall include:

*  *  *  *  *

 (ii) The permit number and Mine Safety and Health Administration identification number, if available.

*  *  *  *  *

Subchapter F. BONDING AND INSURANCE REQUIREMENTS

AMOUNT AND DURATION OF LIABILITY

§ 86.151. Period of liability.

*  *  *  *  *

 (d) The extended period of liability which begins upon completion of augmenting seeding, fertilization, irrigation or other work necessary to achieve permanent revegetation of the permit area shall include additional time taken by the permittee to repeat augmented seeding, fertilization, irrigation or other work under a requirement by the Department but may not include selective husbandry practices approved by the Department, such as pest and vermin control, pruning, repair of rills and gullies or reseeding or transplanting, or both, which constitute normal conservation practices within the region for other land with similar land uses. Seeding, fertilization, irrigation and repair of rills and gullies performed at levels or degrees of management which exceed those normally applied in maintaining use or productivity of comparable unmined land in the surrounding area, would necessitate extending the period of liability.

*  *  *  *  *

FORM, TERMS AND CONDITIONS OF BONDS AND INSURANCE

§ 86.158. Special terms and conditions for collateral bonds.

*  *  *  *  *

 (b) Collateral bonds pledging negotiable government securities are subject to the following conditions:

 (1) The Department will determine the current market value of government securities for the purpose of estab- lishing the value of the securities for bond deposit.

 (2) The current market value, less any legal and liquidation costs, is at least equal to the amount of the required bond amount.

 (3) The Department may periodically revalue the securities and may require additional amounts if the current market value is insufficient to satisfy the bond amount requirements for the facility. At a minimum, the Department shall require any necessary additional amounts with each permit renewal.

*  *  *  *  *

§ 86.162a. Anthracite Mine Operators Emergency Bond Fund.

 (a) For permitted anthracite mine operators required to post a bond under § 86.143 (relating to requirements to file a bond), and who can demonstrate to the Department that they are unable to post a conventional surety or collateral bond as described in § 86.156 (relating to the form of the bond), and do not meet the requirements of § 86.161 (relating to phased deposits of collateral), may apply to the Department for an Anthracite Mine Operator's Emergency Bond Loan. The purpose of this loan is to guarantee a collateral bond posted by the operator.

 (b) Permitted anthracite mine operators who wish to use the anthracite mine emergency bond loan program shall demonstrate one of the following:

*  *  *  *  *

 (c) The Department and the qualified operator shall enter into a written loan agreement, on forms provided by the Department, which shall contain at a minimum, the following provisions:

*  *  *  *  *

 (d) The Department will deposit appropriations and moneys collected under this section into the Anthracite Mine Operators Emergency Bond Fund.

*  *  *  *  *

BOND FORFEITURE

§ 86.189. Reclamation of bond forfeiture sites.

*  *  *  *  *

 (b) The Department will provide for reclamation of bond forfeiture sites through one of the following:

*  *  *  *  *

 (4) Under cooperative agreements among the Department, the State Conservation Commission and the County Conservation District in which the bond forfeiture site is located, the District may enter into a contract with the landowner of the bond forfeiture site to reclaim the site.

*  *  *  *  *

Subchapter G. CIVIL PENALTIES FOR COAL MINING ACTIVITIES

GENERAL PROVISIONS

§ 86.193. Assessment of penalty.

*  *  *  *  *

 (b) The Department will assess a civil penalty for each violation if the violation is assessable in an amount consistent with 30 CFR 723.12(b) and 723.14 under the system for assessment described in § 86.194 (relating to system for assessment of penalties).

 (c) The Department may assess a penalty for each violation which is assessable in an amount consistent with 30 CFR 723.12(c) and 723.14 under the system for assessment described in § 86.194.

Subchapter I. EMPLOYEE CONFLICT OF INTEREST

§ 86.232. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

*  *  *  *  *

 Department—The Department of Environmental Protection.

*  *  *  *  *

§ 86.238. What to report.

 (a) Each employe shall report information required on the statement of employment and financial interests of the employe, the employe spouse, minor children or other relatives who are full-time residents of the employe home. The report shall be on OSM Form 23 as provided by the Department. The statement consists of three major parts:

*  *  *  *  *

Subchapter J. REMINING AND RECLAMATION INCENTIVES

BONDING INCENTIVES

§ 86.281. Financial guarantees to insure reclamation—general.

*  *  *  *  *

 (b) The financial guarantee applies to a permit with remining areas approved by the Department. Operators who wish to participate in this program shall demonstrate, for each permit, their eligibility under §§ 86.253 and 86.282 (relating to operator and project qualification; and participation requirements). The amount will be the estimated cost for the Department to reclaim the remining area, subject to the limitations established in subsection (d).

 (c) The Department will designate a specified amount of the financial guarantees special account in the Remining Financial Assurance Fund to financially assure reclamation obligations on the permits with an approved remining area.

 (d) The Department may not issue financial guarantees on a permit in excess of 10% of the then current designated amount in the special account in the Remining Financial Assurance Fund. The Department will not issue financial guarantees to a mine operator if the aggregate amount of financial guarantees on permits issued to the operator will exceed 30% of the then current designated amount in the special account in the Remining Financial Assurance Fund. The Department will not issue additional financial guarantees when the aggregate amount of outstanding financial guarantees exceeds that amount resulting from dividing the current designated amount in the special account in the Remining Financial Assurance Fund by the historical rate of bond forfeiture under § 86.181 (relating to general) with a margin of safety determined by the Department.

 (e) Upon declaration of forfeiture, the specified amount of the financial guarantee from the financial guarantee special account will be used with other bonds forfeited on the permit by the Department to complete reclamation of the mine site in accordance with the procedures and criteria in §§ 86.187—86.190. If the actual cost of reclamation by the Department exceeds the specified amount of the financial guarantee, additional funds from the Remining Financial Assurance Fund may be used to complete reclamation.

 (f) The Department will hold in reserve in the remining financial assurance fund funds that are not designated to underwrite remining financial guarantees. The Department will use funds held in reserve in the remining financial assurance fund to assure the availability of funds to cover reclamation liabilities when there is a mine operator bond forfeiture under § 86.181 (relating to general).

§ 86.282. Participation requirements.

 (a) Upon completion of the technical review of a permit application and receipt of a request for bond, an operator may apply to participate in the financial guarantees program for a remining area if the requirements of § 86.253 (relating to operator and project qualification) are met. To participate in this program, an operator shall demonstrate to the Department's satisfaction one of the following:

*  *  *  *  *

 (4) The operator has previously participated in the remining financial guarantee program and met its reclamation obligations and made timely payments. An operator will be eligible under this subsection if it has not been cited through a notice of violation under § 86.165(a) (relating to failure to maintain proper bond) within the previous 3 years prior to the request for a remining financial guarantee.

*  *  *  *  *

§ 86.284. Forfeiture.

*  *  *  *  *

 (d) The financial guarantees program may be discontinued immediately and notice published in the Pennsylvania Bulletin, if 25% or greater of the total outstanding financial guarantees are subject to forfeiture. If the financial guarantees program is discontinued, no additional financial guarantees may be approved. Outstanding financial guarantees will remain in effect until released under §§ 86.170—86.175.

*  *  *  *  *

CHAPTER 87. SURFACE MINING OF COAL

Subchapter A. GENERAL PROVISIONS

§ 87.1. Definitions.

*  *  *  *  *

 Surface mining activities—Any activities meeting the definition of ''surface mining activities'' as it is defined at 30 CFR 701.5, which is adopted in its entirety and incorporated herein by reference.

*  *  *  *  *

Subchapter C. SURFACE COAL MINES: MINIMUM REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES

§ 87.53. Prime farmland investigation.

*  *  *  *  *

 (b) Land will not be considered prime farmland if the applicant can demonstrate one of the following:

 (1) The land has not been historically used as cropland.

 (2) Other factors exist, such as a very rocky surface, or the land is frequently flooded during the growing season, more often than once in 2 years, and the flooding has reduced crop yields.

 (3) On the basis of a soil survey of lands within the permit area, there are no soil map units that have been designated prime farmland by the United States Natural Resources Conservation Service.

 (c) If the investigation establishes that the lands are not prime farmland, the applicant shall submit with the permit application a request for a negative determination which shows that the land for which the negative determination is sought meets one of the criteria of subsection (b).

 (d) If the investigation indicates that lands within the proposed permit area may be prime farmlands, the applicant shall contact the United States Natural Resources Conservation Service to determine if a soil survey exists for those lands and whether the applicable soil map units have been designated as prime farmlands. If no soil survey has been made for the lands within the proposed permit area, the applicant shall cause a survey to be made.

 (1) When a soil survey, as required in this subsection, contains soil map units which have been designated as prime farmlands, the applicant shall submit a soil survey of the proposed permit area according to the standards of the National Cooperative Soil Survey and in accordance with the procedures in the United States Department of Agriculture Handbooks 436 (Soil Taxonomy, 1975) and 18 (Soil Survey Manual, 1951) as amended. The soil survey shall include a map unit and representative soil profile description as determined by the United States Natural Resources Conservation Service for each prime farmland within the proposed permit area unless other representative descriptions from the locality, prepared in conjunction with the National Cooperative Soil Survey, are available and their use is approved by the State Conservationist, United States Natural Resources Conservation Service.

 (2) When a soil survey, as required in this subsection, contains soil map units which have not been designated as prime farmland after review by the United States Natural Resources Conservation Service, the applicant shall submit a request for negative determination for nondesignated land with the permit soil survey establishing compliance with subsection (b).

Subchapter E. SURFACE COAL MINES: MINIMUM ENVIRONMENTAL PROTECTION PERFORMANCE STANDARDS

§ 87.100. Topsoil: nutrients and soil amendments.

*  *  *  *  *

 (d) The use of coal ash, biosolids, and residential septage as soil amendments may be approved by the Department if demonstrated to be a suitable soil amendment and the requirements of Subpart D, Articles VIII and IX (relating to municipal waste; and residual waste management) are met.

§ 87.102. Hydrologic balance: effluent standards.

*  *  *  *  *

 (f) In addition to the requirements of subsections (a)—(e), the discharge of water from areas disturbed by mining activities shall comply with this title, including Chapters 91—93, 95, 96, 97 (reserved) and 102.

§ 87.103. Precipitation event exemption.

*  *  *  *  *

 (b) The 10-year, 24-hour precipitation event for specific areas in this Commonwealth shall be determined by reference to data provided by the National Oceanic and Atmospheric Administration or equivalent resources.

 (c) For the permittee to demonstrate that the 10-year, 24-hour precipitation event has for the permittee's mine area been exceeded or that dry weather flow conditions did not exist, the permittee shall do one of the following:

*  *  *  *  *

 (3) Prepare an analysis identifying the runoff area tributary to the treatment facility, and compare the actual runoff as measured and depicted by the flow measuring device with the runoff expected from the 10-year, 24-hour precipitation event specified for the mine area.

*  *  *  *  *

§ 87.112. Hydrologic balance: dams, ponds, embankments and impoundments—design, construction and maintenance.

*  *  *  *  *

 (b) The design, construction and maintenance of dams, ponds, embankments and impoundments shall achieve the minimum design criteria contained in the United States Natural Resources Conservation Service's Pennsylvania Field Office Technical Guide, Section IV, Standards 350, ''Sediment Basin,'' and 378, ''Pond,'' as amended, or United States Natural Resources Conservation Service's Technical Release No. 60, Earth Dams and Reservoirs, whichever is applicable. The standards contained therein are incorporated by reference. In addition to the requirements in ''Sediment Basin,'' a minimum static safety factor of 1.3 is required. These structures shall also meet the following requirements:

*  *  *  *  *

§ 87.117. Hydrologic balance: surface water monitoring.

 (a) In addition to the monitoring and reporting requirements established by the Department under Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), surface water shall be monitored to accurately measure and record the water quantity and quality of the discharges from the permit area and the effect of the discharge on the receiving waters. Surface water shall be monitored for parameters that relate to the suitability of the surface water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance as set forth in § 87.69 (relating to protection of hydrologic balance). At a minimum, total dissolved solids or specific conductance corrected to 25°C, total suspended solids, pH, acidity, alkalinity, total iron, total manganese, sulfates and flow shall be monitored and reported to the Department at least every 3 months for each monitoring location.

*  *  *  *  *

§ 87.155. Revegetation: standards for successful revegetation.

 (a) When the approved postmining land use is cropland, or as provided in subsection (c):

 (1) The standards for successful revegetation shall be based upon crop productivity or yield.

 (2) The approved standards shall be the average yields per acre for the crop and soil type as specified in the Soil Surveys of the United States Department of Agriculture Natural Resources Conservation Service.

*  *  *  *  *

§ 87.157. Cessation of operations: temporary.

 (a) Before temporary cessation status of operations for a period of 30 days or more, an operator shall submit to the Department a notice of intention to temporarily cease operations. The notice shall include a statement of the exact number of acres affected in the permit area, the extent and kind of reclamation of the areas and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the temporary cessation status.

 (b) Temporary cessation status of operations does not relieve the operator of the obligations to comply with the acts as defined in § 86.1 (relating to definitions), Chapters 86—90, or the approved permit, including the obligation to submit an application for permit renewal at least 180 days before the expiration of the existing permit. The Department may enforce these obligations during the temporary cessation status of operations.

 (c) Temporary cessation status will end with the resumption of coal extraction. Any subsequent notices of temporary cessation status must include updated infor- mation outlined in subsection (a).

 (d) Temporary cessation status will terminate where the Department finds a failure to comply with the acts as defined in § 86.1, Chapters 86—90, or the approved permit. Termination of temporary cessation status due to failure to comply with the acts as defined in § 86.1, Chapters 86—90, or the approved permit will place the mining operation in permanent cessation status, subject to the provisions of § 87.158 (cessation of operations: permanent).

§ 87.177. Prime farmland: special requirements.

 (a) When the surface mining activities are being conducted on prime farmland historically used for cropland, a permit for the mining and reclamation operation may be granted by the Department if it first finds, in writing, and after consultation with the Natural Resources Conservation Service, that the applicant has demonstrated that:

*  *  *  *  *

 (b) If a permit is granted under this section, the permit shall be specifically conditioned as containing the plan submitted under § 87.83 (relating to prime farmlands), including any revisions to that plan suggested by the Natural Resources Conservation Service.

*  *  *  *  *

§ 87.181. Prime farmland: revegetation.

*  *  *  *  *

 (c) Standards for determining success of restoration on prime farmlands soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service.

*  *  *  *  *

CHAPTER 88. ANTHRACITE COAL

Subchapter A. GENERAL PROVISIONS

PRELIMINARY PROVISIONS

§ 88.1. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

*  *  *  *  *

 Haul road—Roads that are planned, designed, located, constructed, reconstructed or improved, utilized and maintained for the transportation of equipment, fuel, personnel, coal, spoil and other operating resources from a public road to points within the surface mine or between principal operations on the mine site or both, but not including roads within the pit or on unreclaimed spoil areas. The term includes public roads that are used as an integral part of the coal mining activity.

*  *  *  *  *

 Road—A surface right-of-way for purposes of travel by land vehicles used in coal exploration or surface coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed shoulders, parking and side area, approaches, structures, ditches, surface and such contiguous appendages as are necessary for the total structure. The term includes access and haul roads constructed, used, reconstructed, improved or maintained for use in coal exploration or surface coal mining activities, including use by coal-hauling vehicles leading to transfer, processing or storage areas.

*  *  *  *  *

ANTHRACITE COAL MINING ACTIVITIES: APPLICATION REQUIREMENTS AND PREMINING RESOURCES

§ 88.32. Prime farmland investigation.

*  *  *  *  *

 (b) Land may not be considered prime farmland if the applicant can demonstrate one of the following:

 (1) The land has not been historically used for cropland.

 (2) The slope of the land is 10% or greater.

 (3) There are no soil map units that have been designated prime farmland by the United States Department of Agriculture Natural Resources Conservation Service, on the basis of a soil survey of lands within the permit area.

*  *  *  *  *

 (d) If the investigation indicates that lands within the proposed permit area may be prime farmlands, the applicant shall contact the United States Department of Agriculture Natural Resources Conservation Service to determine if a soil survey exists for those lands and whether the applicable soil map units have been designated as prime farmlands. If no soil survey has been made for the lands within the proposed permit area, the applicant shall cause a survey to be made.

 (e) When a soil survey as required in subsection (d) includes soil map units that have been designated as prime farmlands, the applicant shall submit with the permit application a soil survey of the proposed permit area according to the standards of the National Cooperative Soil Survey and the procedures in the United States Department of Agriculture Handbooks 436 (Soil Taxonomy, 1975) and 18 (Soil Survey Manual, 1951), as amended. The soil survey shall include a map unit and representative soil profile description as determined by the United States Natural Resources Conservation Service for each prime farmland soil within the proposed permit area unless other representative descriptions from the locality, prepared in conjunction with the National Cooperative Soil Survey, are available and their use is approved by the State Conservationist, United States Natural Resources Conservation Service.

 (f) When a soil survey as required in subsection (d) includes map units that have not been designated as prime farmland after review by the United States Department of Agriculture Natural Resources Conservation Service, the applicant shall submit with the permit application a request for negative determination for nondesignated land establishing compliance with subsection (b).

Subchapter B. SURFACE ANTHRACITE COAL MINES: MINIMUM ENVIRONMENTAL PROTECTION PERFORMANCE STANDARDS

§ 88.92. Hydrologic balance: effluent standards.

*  *  *  *  *

 (f) In addition to the requirements of subsections (a)—(e), the discharge of water from areas disturbed by mining activities shall comply with Chapters 91—93, 95, 96, 97 (reserved) and 102.

§ 88.93. Hydrologic balance: precipitation event ex- emption.

*  *  *  *  *

 (b) The 10-year, 24-hour precipitation event for specific areas in this Commonwealth shall be determined by reference to data provided by the National Oceanic and Atmospheric Administration or equivalent resources.

 (c) For the permittee to demonstrate that the 10-year, 24-hour precipitation event has for his mine area been exceeded, or that dry weather flow conditions did not exist, the permittee shall do one of the following:

*  *  *  *  *

 (3) Prepare an analysis identifying the runoff area tributary to the treatment facility, and compare the actual runoff as measured and depicted by the flow measuring device with the runoff expected from the 10-year, 24-hour precipitation event for the mine area.

*  *  *  *  *

§ 88.102. Hydrologic balance: dams, ponds, embankments and impoundments—design, construction and maintenance.

*  *  *  *  *

 (b) The design, construction and maintenance of dams, ponds, embankments and impoundments that are not of the class of subsection (a) shall achieve the minimum design criteria contained in United States Natural Resources Conservation Service's Pennsylvania Field Office Technical Guide, Section IV, Standards 350 ''Sediment Basin'' and 378, ''Pond'' as amended. In addition to the requirements in ''Sediment Basin,'' a minimum static safety factor of 1.3 is required.

§ 88.103. Hydrologic balance: coal processing waste dams and embankments.

 A dam and embankment constructed of coal process- ing waste or intended to impound coal processing waste, shall meet the requirement criteria established by Chapter 105 (relating to dam safety and waterway management) and the United States Natural Resources Service's Pennsylvania Field Office Technical Guide, Section IV, Standard 378, ''Pond'' as applicable.

§ 88.106. Hydrologic balance: surface water monitoring.

 (a) In addition to the monitoring and reporting requirements established by the Department under Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), surface water shall be monitored to measure and record accurately the water quantity and quality of the discharges from the permit area and the effect of the discharge on the receiving waters. Surface water shall be monitored for parameters that relate to the suitability of the surface water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance as set forth in 88.49 (relating to protection of hydrologic balance). At a minimum, total dissolved solids or specific conductance corrected to 25°C, total suspended solids, pH, acidity, alkalinity, total iron, total manganese, sulfates and flow shall be monitored and reported to the Department every 3 months for each monitoring location.

*  *  *  *  *

§ 88.107. Hydrologic balance: water rights and replacement.

*  *  *  *  *

 (g) Operator cost recovery. A surface mine operator or mine owner who appeals a Department order, provides a successful defense during the appeal to the presumptions of liability and is not otherwise held responsible for the pollution or diminution is entitled to recovery of reasonable costs incurred, including, but not limited to, the costs of temporary water supply, design, construction, restoration or replacement costs, attorney fees and expert witness fees from the Department.

*  *  *  *  *

§ 88.129. Revegetation: standards for successful revegetation.

*  *  *  *  *

 (e) When the approved postmining land use is cropland, the approved standard shall be the average yields per acre for the crop and soil type as specified in the Soil Surveys of the United States Department of Agriculture Natural Resources Conservation Service. The productivity or yield of the mined area shall be equal to or greater than the approved standard for the last two consecutive growing seasons of the extended period of responsibility established in § 86.151 (relating to period of liability). Productivity or yield shall be considered equal if production or yield is at least 90% of the approved standard.

 (f) Standards for determining success of restoration on prime farmlands soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service.

*  *  *  *  *

§ 88.131. Cessation of operations: temporary.

 (a) Before temporary cessation status of operations for a period of 30 days or more, an operator shall submit to the Department a notice of intention to temporarily cease operations. The notice shall include a statement of the exact number of acres affected in the permit area, the extent and kind of reclamation of the areas and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the temporary cessation status.

 (b) Temporary cessation status of operations does not relieve the operator of the obligations to comply with the acts as defined in § 86.1 (relating to definitions), Chapters 86—90, or the approved permit, including the obligation to submit an application for permit renewal at least 180 days before the expiration of the existing permit. The Department may enforce these obligations during the temporary cessation status of operations.

 (c) Temporary cessation status will end with the resumption of coal extraction. Any subsequent notices of temporary cessation status must include updated information outlined in subsection (a).

 (d) Temporary cessation status will terminate where the Department finds a failure to comply with the acts as defined in § 86.1, Chapters 86—90, or the approved permit. Termination of temporary cessation status due to failure to comply with the acts as defined in § 86.1, Chapters 86—90, or the approved permit will place the mining operation in permanent cessation status, subject to the provisions of § 88.132 (cessation of operations: permanent).

Subchapter C. ANTHRACITE BANK REMOVAL AND RECLAMATION: MINIMUM ENVIRONMENTAL PROTECTION PERFORMANCE STANDARDS

§ 88.187. Hydrologic balance: effluent standards.

*  *  *  *  *

 (f) In addition to the requirements of subsections (a)—(e), the discharge of water from areas disturbed by mining activities shall comply with Chapters 91—93, 95, 96, 97 (reserved) and 102.

§ 88.188. Hydrologic balance: precipitation event exemption.

*  *  *  *  *

 (b) The 10-year, 24-hour precipitation event for specific areas in this Commonwealth shall be determined by reference to data provided by the National Oceanic and Atmospheric Administration or equivalent resources.

 (c) For the permittee to demonstrate that the 10-year, 24-hour precipitation event has for the mine area been exceeded, or that dry weather flow conditions did not exist, the permittee shall do one of the following:

*  *  *  *  *

 (4) Prepare an analysis identifying the runoff area tributary to the treatment facility and compare the actual runoff as measured and depicted by the flow measuring device with the runoff expected from the 10-year, 24-hour precipitation event specified for the mine area.

*  *  *  *  *

§ 88.193. Hydrologic balance: collection ponds within disturbed areas.

*  *  *  *  *

 (b) The ponds or collection areas shall be capable of treating the runoff. Runoff shall be calculated using the Natural Resources Conservation Service methods.

*  *  *  *  *

§ 88.197. Hydrologic balance: ponds, embankments and impoundments—design, construction and maintenance.

*  *  *  *  *

 (b) The design, construction and maintenance of dams, ponds, embankments and impoundments that are not of the class of subsection (a) shall achieve the minimum design criteria contained in United States Natural Resources Conservation Service's Pennsylvania Field Office Technical Guide, Section IV, Standards 350 ''Sediment Basin'' and Standard 378, ''Pond,'' as amended. In addition to the requirements in ''Sediment Basin,'' a minimum static safety factor of 1.3 is required.

§ 88.198. Hydrologic balance: coal processing waste dams and embankments.

 A dam and embankment constructed of coal processing waste or intended to impound coal processing waste, shall meet the criteria established by Chapter 105 (relating to dam safety and waterway management) and the United States Natural Resources Conservation Service's Pennsylvania Field Office Technical Guide, Section IV, and Standard 378 ''Pond,'' as applicable.

§ 88.202. Hydrologic balance: surface water moni- toring.

 (a) In addition to the monitoring and reporting requirements established by the Department under Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), surface water shall be monitored to measure and record accurately the water quantity and quality of the discharges from the permit area and the effect of the discharge on the receiving waters. Surface water shall be monitored for parameters that relate to the suitability of the surface water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance as set forth in § 88.49 (relating to protection of hydrologic balance). At a minimum, total dissolved solids or specific conductance corrected to 25°C, total suspended solids, pH, acidity, alkalinity, total iron, total manganese, sulfates and flow shall be monitored and reported to the Department every 3 months for each monitoring location.

*  *  *  *  *

§ 88.217. Vegetation: standards for successful veg- etation.

*  *  *  *  *

 (e) When the approved postmining land use is cropland, the approved standard shall be the average yields per acre for the crop and soil type as specified in the Soil Surveys of the United States Department of Agriculture Natural Resources Conservation Service. The productivity or yield of the mined area shall be equal to or greater than the approved standard for the last two consecutive growing seasons of the extended period of responsibility established in § 86.151 (relating to period of liability). Productivity or yield shall be considered equal if production or yield is at least 90% of the approved standard.

 (f) Standards for determining success of restoration on prime farmlands soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service.

*  *  *  *  *

§ 88.219. Cessation of operations: temporary.

 (a) Before temporary cessation status of operations for a period of 30 days or more, an operator shall submit to the Department a notice of intention to temporarily cease operations. The notice shall include a statement of the exact number of acres affected in the permit area, the extent and kind of reclamation of the areas and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the temporary cessation status.

 (b) Temporary cessation status of operations does not relieve the operator of the obligations to comply with the acts as defined in § 86.1 (relating to definitions), Chapters 86—90, or the approved permit, including the obligation to submit an application for permit renewal at least 180 days before the expiration of the existing permit. The Department may enforce these obligations during the temporary cessation status of operations.

 (c) Temporary cessation status will end with the resumption of coal extraction. Any subsequent notices of temporary cessation status must include updated information outlined in subsection (a).

 (d) Temporary cessation status will terminate where the Department finds a failure to comply with the acts as defined in § 86.1, Chapters 86—90, or the approved permit. Termination of temporary cessation status due to failure to comply with the acts as defined in § 86.1, Chapters 86—90, or the approved permit will place the mining operation in permanent cessation status, subject to the provisions of § 88.220 (relating to cessation of operations: permanent).

Subchapter D. ANTHRACITE REFUSE DISPOSAL: MINIMUM ENVIRONMENTAL PROTECTION PERFORMANCE STANDARDS

§ 88.292. Hydrologic balance: effluent standards.

*  *  *  *  *

 (f) In addition to the requirements of subsections (a)—(e), the discharge of water from areas disturbed by mining activities shall comply with this title, including Chapters 91—93, 95, 96, 97 (reserved) and 102.

§ 88.293. Hydrologic balance: precipitation event exemption.

*  *  *  *  *

 (b) The 1-year and 10-year; 24-hour precipitation events for specific areas in this Commonwealth shall be determined by reference to data provided by the National Oceanic and Atmospheric Administration or equivalent resources.

 (c) For the permittee to demonstrate that the event has for the mine area been exceeded, or that dry weather flow conditions did not exist, the permittee shall comply with one of the following:

 (1) Collect 24-hour rainfall information form official United States Weather Bureau Stations within a 25-mile distance—radius—of the site.

 (2) Calculate the estimated rainfall event for the site, by appropriate interpolation of the data collected under paragraph (1). Appropriate interpolation shall be accomplished by the following:

 (i) Preparing a verified copy of the chart or readout from a Department approved flow measuring device which continuously records the influent to the permitted treatment facility. The device shall be approved by the Department in writing prior to the rainfall event for which the exemption is sought and shall be secured to prevent tampering and acts of third parties.

 (ii) Preparing an analysis identifying the runoff area tributary to the treatment facility, and compare the actual runoff as measured and depicted by the flow measuring device with the runoff expected from the 1-year or 10-year, 24-hour rainfall event specified for the mine area.

*  *  *  *  *

 (4) Prepare an analysis identifying the runoff area tributary to the treatment facility, and compare the actual runoff as measured and depicted by the flow measuring device with the runoff expected from the 1-year or 10-year, 24-hour rainfall event specified for the mine area.

*  *  *  *  *

§ 88.302. Hydrologic balance: dams, ponds, embankments and impoundments—design, construction and maintenance.

*  *  *  *  *

 (b) The design, construction and maintenance of dams, ponds, embankments and impoundments that are not of the class of subsection (a) shall achieve the minimum design criteria contained in United States Natural Resources Conservation Service's Pennsylvania Field Office Technical Guide, Section IV, Standards 350 ''Sediment Basin'' and 378, ''Pond,'' as amended. In addition to the requirements in ''Sediment Basin,'' a minimum static safety factor of 1.3 is required.

§ 88.303. Hydrologic balance: coal processing waste dams and embankments.

 A dam and embankment constructed of coal processing waste or intended to impound coal processing waste, shall meet the requirement criteria established under Chapter 105 (relating to dam safety and waterway management) and the United States Natural Resources Conservation Service's Pennsylvania Field Office Technical Guide, Section IV, Standard 378, ''Pond'', as applicable.

§ 88.306. Hydrologic balance: surface water monitoring.

 (a) In addition to the monitoring and reporting requirements established by the Department under Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), surface water shall be monitored to measure and record accurately the water quantity and quality of the discharges from the permit area and the effect of the discharge on the receiving waters. Surface water shall be monitored for parameters that relate to the suitability of the surface water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance as set forth in § 88.49 (relating to protection of hydrologic balance). At a minimum, total dissolved solids or specific conductance corrected to 25°C, total suspended solids, pH, acidity, alkalinity, total iron, total manganese, sulfates and flow shall be monitored and reported to the Department every 3 months for each monitoring location.

*  *  *  *  *

§ 88.330. Revegetation: standards for successful revegetation.

*  *  *  *  *

 (e) When the approved postmining land use is cropland, the approved standard shall be the average yields per acre for the crop and soil type as specified in the Soil Surveys of the United States Department of Agriculture, Natural Resources Conservation Service. The productivity or yield of the mined area shall be equal to or greater than the approved standard for the last two consecutive growing seasons of the extended period of responsibility established in § 86.151 (relating to period of liability). Productivity or yield shall be considered equal if production or yield is at least 90% of the approved standard.

 (f) Standards for determining success of restoration on prime farmlands soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service.

*  *  *  *  *

§ 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, consistent with section 6.1(i) of the Coal Refuse Disposal Control Act (52 P.S. § 30.56a(i)).

 (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.

Subchapter F. ANTHRACITE UNDERGROUND MINES

§ 88.491. Minimum requirements for information on environmental resources.

*  *  *  *  *

 (k) Preapplication investigation. The applicant shall conduct a preapplication investigation of the proposed permit area to determine whether lands within the area may be prime farmland.

 (1) Land will not be considered prime farmland if the applicant can demonstrate one of the following:

 (i) The land has not been historically used for cropland.

 (ii) The slope of the land is 10% or greater.

 (iii) There are no soil map units that have been designated prime farmland by the United States Department of Agriculture Natural Resources Conservation Service, on the basis of a soil survey of lands within the permit area.

 (iv) The area of prime farmland is minimal in size—less than 5 acres—and has been or will be in use for an extended period of time—more than 10 years.

 (2) If the applicant determines after investigation that all or part of the lands in the proposed permit area are not prime farmland, the applicant shall submit with the permit application a request for a negative determination showing that the lands meet one of the criteria of paragraph (1).

 (3) If the investigation indicates that lands within the proposed permit area may be prime farmlands, the applicant shall contact the United States Department of Agriculture Natural Resources Conservation Service to determine if a soil survey exists for those lands and whether the applicable soil map units have been designated as prime farmlands. If no soil survey has been made for the lands within the proposed area, the applicant shall cause a survey to be made.

 (4) When a soil survey as required in paragraph (3) includes soil map units that have been designated as prime farmlands, the applicant shall submit with the permit application a soil survey of the proposed permit area according to the standards of the National Cooperative Soil Survey and in accordance with the procedures set forth in the United States Department of Agriculture Handbooks 436 (Soil Taxonomy, 1975) and 18 (Soil Survey Manual, 1951) as amended. The soil survey shall include a map unit and representative soil profile description as determined by the United States Natural Resources Conservation Service for each prime farmland soil within the proposed permit area unless other representative descriptions from the locality, prepared in conjunction with the National Cooperative Soil Survey are available and their use is approved by the State Conservationist, United States Natural Resources Conservation Service.

 (5) When a soil survey as required in paragraph (3) includes soil map units that have not been designated as prime farmland after review by the United States Department of Agriculture Natural Resources Conservation Service, the applicant shall submit with the permit application a request for negative determination for nondesignated land establishing compliance with paragraph (1).

§ 88.493. Minimum environmental protection performance standards.

 A person who conducts underground mining activities shall comply with the performance standards and design requirements of this section. The following performance standards shall be met:

*  *  *  *  *

 (8) Standards for determining success of restoration on prime farmland soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service. Soil productivity for prime farmland shall be returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed under § 88.491(k) (relating to minimum requirements for information on environmental resources).

*  *  *  *  *

Subchapter G. ANTHRACITE SURFACE MINING ACTIVITIES AND ANTHRACITE BANK REMOVAL AND RECLAMATION ACTIVITIES: MINIMUM REQUIREMENTS FOR REMINING AREAS WITH POLLUTIONAL DISCHARGES

§ 88.502. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

*  *  *  *  *

 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 § 88.95(b)—(g), § 88.190(b)—(g) or § 88.295(b)—(i) (relating to hydrologic balance: diversions; hydrologic balance: diversions; and hydrologic balance: diversions and conveyances), as applicable.

*  *  *  *  *

§ 88.507. Treatment of discharges.

*  *  *  *  *

 (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 §§ 88.95(b)—(g), 88.190(b)—(g) and 88.295(b)—(i) (relating to hydrologic balance: diversions; hydrologic balance: diversions; and hydrologic balance: diversions and conveyances).

*  *  *  *  *

§ 88.508. Request for bond release.

 Sections 86.172(c) and 88.509 (relating to criteria for release of bond; and criteria and schedule for release of bonds on pollution abatement areas) apply to the release of bonds for pollutional abatement areas authorized by this subchapter. Section 86.172(a) and (b) shall be inapplicable to the release of bonds.

CHAPTER 89. UNDERGROUND MINING OF COAL AND COAL PREPARATION FACILITIES

Subchapter B. OPERATIONS

PERFORMANCE STANDARDS

§ 89.52. Water quality standards, effluent limitations and best management practices.

*  *  *  *  *

 (f) Postmining pollutional discharges.

 (1) If a postmining pollutional discharge occurs, the discharger shall immediately provide interim treatment to comply with the Group A effluent requirements in subsection (a), including modifications authorized or required under subsection (e), (g) or (h). The discharger shall also take whatever measures are necessary and available to abate the discharge, including modifying the operation and reclamation plan for the mining activity.

 (2) If the discharge continues to exist, after implementation of the abatement measures required under paragraph (1), the discharger shall make provisions for sound future treatment of the discharge to achieve the Group A effluent requirements in subsection (c), including modifications authorized or required under subsection (e) or (h). If the untreated discharge can be adequately treated using a passive treatment system, in addition to achieving the effluent requirements, the passive treatment system shall be designed and constructed to accomplish the following:

 (i) Prevent discharge of mine drainage into the groundwater.

 (ii) Prevent extraneous sources of groundwater and surface water runoff from entering the treatment system.

 (iii) Hydraulically handle the highest average monthly flow rate which occurs during a 12-month period.

 (iv) Have inlet and outlet structures which will allow for flow measurement and water sampling.

 (v) Prevent to the maximum extent practicable physical damage, and associated loss of effectiveness, due to wildlife and vandalism.

 (vi) Be of a capacity so that it will operate effectively and achieve the required effluent quality for 15 to 25 years before needing to be replaced.

 (3) Any passive treatment system shall be designed by, and constructed under the supervision of, a qualified professional knowledgeable in the subject of passive treatment of mine drainage.

*  *  *  *  *

 (h) Additional requirements. In addition to the requirements of subsections (c)—(g), the discharge of water from the permit area shall comply with this title, including Chapters 91—93, 95, 96, 97 (reserved) and 102.

*  *  *  *  *

§ 89.53. Precipitation event exemption.

*  *  *  *  *

 (b) The 10-year, 24-hour rainfall events for specific areas in this Commonwealth shall be determined by reference to data provided by the National Oceanic and Atmospheric Administration or equivalent resources.

 (c) For the permittee to demonstrate that the 10-year, 24-hour event has for the mine area been exceeded, or that dry weather flow conditions did not exist, the permittee shall comply with one of the following:

*  *  *  *  *

 (2) The permittee shall comply with the following:

 (i) Prepare a verified copy of the chart or readout from a Department-approved flow measuring device which continuously records the influent to the permitted treatment facility. The device shall be approved by the Department in writing prior to the rainfall event for which the exemption is sought and shall be secured to prevent tampering and acts of third parties.

 (ii) Prepare an analysis identifying the runoff area tributary to the treatment facility, and compare the actual runoff as measured and depicted by the flow measuring device with the runoff expected from the 10-year, 24-hour rainfall event specified for the mine area.

*  *  *  *  *

§ 89.59. Surface water and groundwater monitoring.

 (a) Surface water and groundwater monitoring shall be conducted under § 89.34 (relating to hydrology) and with the monitoring plan contained in the permit. At a minimum, surface water and groundwater monitoring shall include the following conditions:

*  *  *  *  *

 (3) In addition to the monitoring and reporting requirements in Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), surface water shall be monitored accurately to measure and record the water quantity and quality of discharges from the permit area and the effect of the discharges on the receiving waters. Surface water shall be monitored for parameters that relate to the suitability of the surface water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance as set forth in § 89.36 (relating to protection of hydrologic balance). At a minimum, total dissolved solids or specific conductance corrected to 25°C, total suspended solids, total iron, total manganese, acidity, alkalinity, pH, sulfates and flow shall be monitored and reported to the Department at least every 3 months for each monitoring location.

*  *  *  *  *

Subchapter C. RECLAMATION

PERFORMANCE STANDARDS

§ 89.86. Revegetation.

*  *  *  *  *

 (e) Standards for successful revegetation shall be as follows:

 (1) When the approved postmining land use is cropland:

 (i) The standards for successful revegetation shall be based upon crop productivity, yield or soil tests.

 (ii) The approved standard shall be the average yield per acre for the crop and soil type as specified in the Soil Surveys of the United States Department of Agriculture Natural Resources Conservation Service.

 (iii) The productivity or yield of the mined area shall be equal to or greater than the approved standard for the last 2 consecutive growing seasons of the 5-year responsibility period established in this section. Productivity or yield shall be considered equal if production or yield is at least 90% of the approved standard.

*  *  *  *  *

Subchapter D. STRUCTURAL REQUIREMENTS FOR IMPOUNDMENTS

PERFORMANCE STANDARDS

§ 89.112. Impoundments.

 An impoundment shall be designed in accordance with the United States Natural Resources Conservation Service's Pennsylvania Field Office Technical Guide, Section IV, Standards 350, ''Sediment Basin,'' and 378, ''Pond,'' or United States Natural Resources Conservation Service Technical Release No. 60, ''Earth Dams and Reservoirs,'' whichever is applicable. The standards are incorporated by reference. In addition to the requirements in ''Sediment Basin,'' a minimum static safety factor of 1.3 is required. Each impoundment shall be certified that it has been constructed and is being maintained as designed and in accordance with the approved plan and all applicable performance standards. These structures shall also meet the following requirements:

*  *  *  *  *

Subchapter E. PRIME FARMLANDS

INFORMATION REQUIREMENTS

§ 89.121. Prime farmland investigation.

 (a) The applicant shall contact the county office of the Natural Resources Conservation Service to determine whether lands within the area may be prime farmland.

 (b) Land shall not be considered prime farmland when the applicant can demonstrate one or more of the following:

*  *  *  *  *

 (5) On the basis of a soil survey of the lands proposed to be affected by surface operations or facilities, there are no soil map units that have been designated prime farmland by the United States Natural Resources Conservation Service; or

*  *  *  *  *

 (d) The applicant shall submit the results of the investigation along with certification by the Natural Resources Conservation Service that the conclusions are correct.

*  *  *  *  *

§ 89.122. Prime farmlands.

*  *  *  *  *

 (b) A person who conducts or intends to conduct underground mining activities on prime farmlands historically used for cropland, except those persons exempted under subsection (a), shall submit a plan as part of the permit application for the mining and restoration of the land. A plan shall contain, at a minimum, the following:

 (1) A soil survey of the permit area according to the standards of the National Cooperative Soil Survey and in accordance with the procedures in United States Department of Agriculture Handbooks 436 (Soil Taxonomy, 1975) and 18 (Soil Survey Manual, 1951). The soil survey shall include a map unit and representative soil profile description as determined by the United States Natural Resources Conservation Service for each prime farmland soil within the permit area unless other representative descriptions from the locality, prepared in conjunction with the National Cooperative Soil Survey, are available and their use is approved by the State Conservationist, United States Natural Resources Conservation Service. The soil profile description shall include, but not be limited to, soil horizon depths, pH and range of soil densities for each prime farmland soil unit within the proposed permit area. The Department may require the applicant to provide information on other physical and chemical soil properties as needed to make a determination that the operator has the technological capability to restore the prime farmland within the permit area to the soil reconstruction standards of §§ 89.131—89.133 (relating to soil removal; soil stockpiling; and soil replacement).

*  *  *  *  *

 (8) Standards for determining success of revegetation on prime farmland soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service. The current estimated yields under equivalent levels of management for each soil map unit and for each crop shall be used by the Department as the predetermined target level for determining success of revegetation. The target yields may be adjusted by the Department in consultation with the Secretary of Agriculture before approval of the permit application.

 (c) Before a permit is issued for areas that include prime farmlands, the Department will consult the Natural Resources Conservation Service. The Natural Resources Conservation Service shall have the opportunity for review and comment of the proposed method of soil reconstruction in the plan submitted under subsection (b).

 (d) When the underground mining activities are being conducted on prime farmland, a permit for the mining and reclamation operation may be granted by the Department, if it first finds, in writing, that:

*  *  *  *  *

 (4) The permit incorporates as specific conditions the contents of the plan submitted under subsection (b), after consideration of any revisions to the plan suggested by the Natural Resources Conservation Service under subsection (c).

*  *  *  *  *

PERFORMANCE STANDARDS

§ 89.134. Revegetation.

*  *  *  *  *

 (c) Standards for determining success of restoration on prime farmlands soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service.

*  *  *  *  *

CHAPTER 90. COAL REFUSE DISPOSAL

Subchapter B. MINIMUM ENVIRONMENTAL RESOURCES INFORMATION REQUIRED IN PERMIT APPLICATIONS FOR COAL REFUSE DISPOSAL

§ 90.22. Prime farmland investigation.

*  *  *  *  *

 (b) Land will not be considered prime farmland when the applicant can demonstrate one or more of the following:

*  *  *  *  *

 (5) There are no soil map units that have been designated prime farmland by the United States Natural Resources Conservation Service, on the basis of a soil survey of the lands proposed to be affected by coal refuse disposal activities.

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 (d) If the investigation indicates that lands within the proposed area to be affected by coal refuse disposal activities may be prime farmlands, the applicant shall contact the United States Natural Resources Conservation Service to determine if these lands have a soil survey and whether the applicable soil map units have been designated prime farmlands. If a soil survey has not been made for these lands, the applicant shall cause a survey to be made.

 (1) When a soil survey as required in this subsection contains soil map units which have been designated as prime farmlands, the applicant shall submit a soil survey of the proposed permit area according to the standards of the National Cooperative Soil Survey and in accordance with the procedures in the United States Department of Agriculture Handbooks 436 (Soil Taxonomy, 1975) and 18 (Soil Survey Manual, 1951). The soil survey shall include a map unit and representative soil profile description as determined by the United States Natural Resources Conservation Service for each prime farmland soil within the proposed permit area, unless other representative descriptions from the locality, prepared in conjunction with the National Cooperative Soil Survey, are available and their use is approved by the State Conservationist, United States Natural Resources Conservation Service.

 (2) When a soil survey as required in this subsection contains soil map units which have not been designated, after review by the United States Natural Resources Conservation Service, as prime farmland, the applicant shall submit a request for negative determination for nondesignated land with the permit application establishing compliance with subsection (b).

Subchapter D. PERFORMANCE STANDARD FOR COAL REFUSE DISPOSAL

§ 90.102. Hydrologic balance: water quality standards, effluent limitations and best management practices.

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 (f) Additional requirements. In addition to the requirements of subsections (a)—(e), the discharge of water from coal refuse disposal activities shall comply with this title, including Chapters 91—93, 95, 96, 97 (reserved) and 102.

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§ 90.103. Precipitation event exemption.

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 (b) The 1-year and 10-year 24-hour rainfall events for specific areas in this Commonwealth shall be determined by reference to data provided by the National Oceanic and Atmospheric Administration or equivalent resources.

 (c) For the coal refuse disposal permittee to demonstrate that the event has for the mine area been exceeded, or that dry weather flow conditions did not exist, the permittee shall comply with paragraph (1), (2) or (3).

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 (2) Complying with the following:

 (i) Prepare a verified copy of the chart or readout from a Department-approved flow measuring device which continuously records the influent to the permitted treatment facility. The device shall be approved by the Department in writing prior to the event for which the exemption is sought and shall be secure to prevent tampering and acts of third parties.

 (ii) Prepare an analysis identifying the runoff area tributary to the treatment facility, and compare the actual runoff as measured and depicted by the flow measuring device with the runoff expected from the 1-year or 10-year, 24-hour precipitation event specified for the mine area.

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§ 90.112. Hydrologic balance: dams, ponds, embankments and impoundments—design, construction and maintenance.

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 (b) The design, construction and maintenance of dams, ponds, embankments and impoundments shall achieve the minimum design criteria contained in the United States Natural Resources Conservation Service's Pennsylvania Field Office Technical Guide, Section IV, Standards 350 ''Sediment Basin'' and 378, ''Pond,'' or United States Natural Resources Conservation Service's Technical Release No. 60, Earth Dams and Reservoirs, whichever is applicable. The standards are incorporated by reference. In addition to the requirements in ''Sediment Basin,'' a minimum static safety factor of 1.3 is required. These structures shall meet the following requirements:

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§ 90.113. Hydrologic balance: coal processing waste dams and embankments.

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 (c) The design freeboard between the lowest point on the embankment crest and the maximum water elevation shall be at least 3 feet. The maximum water elevation shall be that determined by the freeboard hydrograph criteria contained in the United States Natural Resources Conservation Service's Technical Release No. 60, ''Earth Dams and Reservoirs.'' The standards contained therein are hereby incorporated by reference.

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§ 90.116. Hydrologic balance: surface water monitoring.

 (a) In addition to the monitoring and reporting requirements established by the Department under Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), surface water shall be monitored to accurately measure and record the water quantity and quality of the discharges from the permit area and the effect of the discharge on the receiving waters. Surface water shall be monitored for parameters that relate to the suitability of the surface water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance as set forth in § 90.35 (relating to protection of hydrologic balance). At a minimum, total dissolved solids or specific conductance corrected to 25°C, total suspended solids, pH, acidity, alkalinity, total iron, total manganese, sulfates and flow shall be monitored and reported to the Department at least every 3 months for each monitoring location.

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§ 90.159. Revegetation: standards for successful revegetation.

 (a) When the approved postdisposal land use is cropland or as provided in subsection (c), the following apply:

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 (2) The approved standard shall be the average yields per acre for the crop and soil type as specified in the soil surveys of the United States Department of Agriculture Natural Resources Conservation Service.

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§ 90.161. Prime farmland: special requirements.

 (a) When the coal refuse disposal activities are being conducted on prime farmland historically used for cropland, a permit for the mining and reclamation operation may be granted by the Department if it first finds, in writing and after consultation with the Natural Resources Conservation Service, that the applicant has demonstrated that:

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 (b) If a permit is granted under this section, the permit shall be specifically conditioned as containing the plan submitted under § 90.33 (relating to reclamation plan), including any revisions to that plan suggested by the United States Natural Resources Conservation Service.

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§ 90.165. Prime farmland: revegetation.

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 (c) Standards for determining success of restoration on prime farmland soils shall be based upon the soil surveys and soil interpretations and the latest yield data available from the United States Department of Agriculture Natural Resources Conservation Service.

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Subchapter E. SITE SELECTION

§ 90.201. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

 Preferred site—A watershed polluted by acid mine drainage; a watershed containing an unreclaimed surface mine but which has no mining discharge; a watershed containing an unreclaimed surface mine with discharges that could be improved by the proposed coal refuse disposal operation; unreclaimed coal refuse disposal piles that could be improved by the proposed coal refuse disposal operation; other unreclaimed areas previously affected by mining activities; or an area adjacent to or an expansion of an existing coal refuse disposal site.

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Subchapter F. COAL REFUSE DISPOSAL ACTIVITIES ON AREAS WITH PRE-EXISTING POLLUTIONAL DISCHARGES

§ 90.308. Request for bond release.

 Sections 86.172(c) and 90.309 (relating to criteria for release of bond; and criteria and schedule for release of bonds on pollution abatement areas) apply to the release of bonds for pollutional abatement areas authorized by this subchapter. Section 86.172(a) and (b) is not applicable to the release of bonds.

[Pa.B. Doc. No. 20-374. Filed for public inspection March 13, 2020, 9:00 a.m.]

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