PROPOSED RULEMAKING
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 88 AND 90]
Coal Refuse Disposal Revisions
[51 Pa.B. 6914]
[Saturday, November 6, 2021]The Environmental Quality Board (Board) proposes to amend Chapters 88 and 90 (relating to anthracite coal; and coal refuse disposal). The proposed amendments are intended to implement the act of October 4, 2019 (P.L. 452, No. 74) (Act 74) and to address the differences between the Commonwealth's regulations and Federal regulations relating to temporary cessation at coal refuse disposal sites.
This proposal was adopted by the Board at its meeting of June 15, 2021.
A. Effective Date
These amendments will go into effect upon publication of the final-form rulemaking in the Pennsylvania Bulletin.
B. Contact Persons
For further information contact Gregory Greenfield, Environmental Group Manager, Bureau of Mining Programs, P.O. Box 8461, 5th Floor, 400 Market Street, Rachel Carson State Office Building, Harrisburg, PA 17105-8461, (717) 787-5015, or Christopher Minott, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, 9th Floor, 400 Market Street, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding submitting comments on this proposal appears in section J of this preamble. Persons with a disability may use the Pennsylvania Hamilton Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed 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,'' then navigate to the Board meeting of June 15, 2021).
C. Statutory Authority
This proposed rulemaking is created under the authority of section 5 of The Clean Streams Law (35 P.S. § 691.5), section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § 1396.4b(a)), section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. § 30.53b) and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20), which authorizes the Board to adopt rules and regulations necessary for the performance of the work of the Department.
D. Background and Purpose
Section 1 of Act 74 amended section 6.1 of the Coal Refuse Disposal Control Act (52 P.S. § 30.56a) to conform with the regulations and standards for temporary cessation adopted by the United States Office of Surface Mining Reclamation and Enforcement under Federal law, namely the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. §§ 1201—1328) (SMCRA) and regulations at 30 CFR 816.131 (relating to cessation of operations: Temporary). Previously, while Federal rules under SMCRA provided flexibility, the Commonwealth's Coal Refuse Disposal Control Act (52 P.S. §§ 30.51—30.66) had limited the temporary cessation of operations at a coal refuse disposal site to no more than 1 year. Act 74 removed the Commonwealth's 1-year limitation and clarifies that any rules or regulations promulgated must be in conformance with Federal provisions on this subject. Act 74 also gave the Department an opportunity to promulgate regulations linking the status of operations generating coal refuse or related material to the coal refuse disposal area. The status of a coal refuse disposal site is directly related to the status of the source of the refuse and the proposed revisions will ensure that a change in status of one will result in a change in the status of the other. For example, when an underground coal mine is actively mining coal and sending the refuse material to a coal refuse disposal site, both facilities are considered active. If that underground coal mine is approved for temporary cessation, the coal refuse disposal site would also be approved for temporary cessation since no refuse material is being generated to be sent there. If mining was to begin again, both facilities would be considered active, whereas, if the mine was to permanently cease operations, the coal refuse disposal facility would be considered permanently ceased unless an alternative source of refuse material can be found.
The requirements for temporary cessation include a reference to a system to prevent precipitation from contacting the coal refuse. Act 74 also revised section 6.1 of the Coal Refuse Disposal Control Act (52 P.S. § 30.56a) to include an enumerated list of the circumstances under which this system must be installed. Previously, the requirement was listed in paragraph form, which was somewhat unclear.
Other proposed changes to the regulations are a result of the Department's experiences with reviewing applications for the permitting of coal refuse disposal sites. Confusing or incorrect requirements in the regulations have resulted in applications being considered technically deficient and sent back to the permittee for corrections. The proposed clarifications will improve the quality of the applications and reduce the amount of correction letters sent to address these items. This includes the existing performance standards for terraces and surface water runoff at coal refuse disposal sites which, as written, have led to confusion on the purpose and intent. The terraces requirements are being revised to state that terraces must be constructed as they are needed to control erosion and prevent cascading failures of the final cap rather than just being an optional use. The use of the terms ''off of the fill'' and ''adjacent to and above the fill'' in this section are proposed to be amended to clarify the original intent and resolve the existing conflicts with other parts of the section.
The Department worked with the Mining and Reclamation Advisory Board (MRAB) to develop these proposed regulations. The MRAB is composed of two licensed bituminous surface mine operators, one licensed anthracite surface mine operator, four public members of the Citizens Advisory Council, one anthracite or one bituminous licensed professional engineer, one county conservation district representative, one majority party State senator, one minority party State senator, one majority party State representative and one minority party State representative. The proposed revisions were first mentioned at the January 23, 2020, MRAB meeting as part of the review of the current regulatory agenda. At the March 16, 2020, MRAB Regulation, Legislation and Technical (RLT) committee meeting, the draft language was reviewed and the MRAB RLT committee suggested changes to the language. A second meeting of the MRAB RLT committee took place on May 18, 2020, to review the draft revised language resulting from the March 16, 2020, committee meeting. The Department reviewed the revised draft with the MRAB again at its meeting on July 16, 2020. A third meeting of the MRAB RLT committee took place on October 15, 2020, to review the revised draft and the committee recommended a minor revision to the permanent cessation section. At the MRAB meeting of October 22, 2020, the MRAB recommended that the Department proceed with this proposed rulemaking.
E. Summary of Regulatory Requirements
§ 88.310. Coal refuse disposal: general requirements
Subsection (k)(1) is proposed to be amended to individually enumerate the triggers for installation of the system to prevent precipitation from encountering the coal refuse to reflect the list of triggers included in Act 74. This proposed amendment includes the language in Act 74 which clarifies that there is not a 1-year upper limit on the length of temporary cessation.
§ 88.332. Cessation of operations: temporary
Act 74 amended section 6.1 of the Coal Refuse Disposal Control Act to conform with the regulations and standards for temporary cessation under Federal law. To be consistent with the Federal regulations at 30 CFR 816.131, subsection (a) is proposed to be amended, and the existing requirements for temporary cessation for anthracite coal refuse disposal sites are proposed to be amended as follows.
Proposed amendments to subsection (a), which are based on the Federal requirements, will address temporary cessation status of operations lasting 30 days or more and will require a notice to be submitted to the Department. The list of items that must be included in this notice are enumerated as paragraphs (1)—(4) and include the affected acres in the permit area; a description of the extent and kind of reclamation of the area; a description of the activities that will continue during the temporary cessation status; and a description of the status of the operation or operations that is the source of the coal refuse. Paragraphs (1)—(3) are based on the Federal regulations and are in the existing subsection (a). Paragraph (4) is proposed based on the language in Act 74 to provide for the connection of coal refuse or related material to the coal refuse disposal area. Act 74 removed the 1-year limitation on temporary cessation and that part of subsection (a) is proposed to be deleted.
Proposed amendments to subsection (b) address temporary cessation status of operations lasting 90 days or more and, in addition to the items required to be submitted in subsection (a), there are two additional items that must be included in the notice submitted to the Department. These items may be submitted at the same time as the subsection (a) notice or subsequent to that notice. These two additional items are enumerated as paragraphs (1) and (2) and include the confirmation that the current bond is adequate to complete reclamation and the timing of the installation of the phased system to prevent precipitation from contacting the refuse. The difference in requirements between subsections (a) and (b) ensures the operator does not need to address longer-term requirements if the temporary cessation will last less than 90 days. While this distinction is not found in the Federal requirements nor Act 74, it is proposed because the amendments will allow for an unlimited time for cessation. The confirmation that the bond amount is adequate to complete the reclamation of the site as it currently exists is necessary to assure that the site can be fully reclaimed if the site ends up in bond forfeiture. The requirement for a schedule for the system to prevent precipitation from coming into contact with the refuse is proposed to assure that the potential water quality impacts of long-term cessation are mitigated. The existing statement about exemptions for a seasonal shutdown or labor strike is proposed to be deleted from this subsection as a justification for a longer temporary cessation is no longer needed since the upper time limit is proposed to be deleted.
Proposed amendments to subsection (c) include the obligation to comply with the environmental protection statutes or ''acts'' as defined in § 86.1 (relating to definitions) and Chapters 86—90, in addition to the provisions of the permit. Currently, subsection (c) only requires compliance with the provisions of the permit. The proposed amendments clarify that operators are required to submit a permit renewal while under temporary cessation.
Proposed subsection (d) states that temporary cessation status ends as a result of the resumption of coal refuse disposal operations and subsequent notices of temporary cessation status must include updated information that is outlined in § 88.332 (relating to cessation of operations: temporary).
Proposed subsection (e) states that temporary cessation status for the coal refuse disposal operation ends when an operation that is a source of the coal refuse resumes its operations or ends by permanent cessation.
Proposed subsection (f) states that temporary cessation status for the coal refuse disposal operation ends when the coal refuse disposal operation itself ends by permanent cessation as specified in § 88.333 (relating to cessation of operations: permanent).
§ 88.333. Cessation of operations: permanent
While neither the Federal regulations nor statute address this, subsection (b) is proposed to be added to this section to provide a trigger for when a temporary cessation has developed into a permanent cessation. This necessitates the lettering of the existing language as subsection (a). Proposed subsection (b) describes the circumstances that will terminate the temporary cessation status of a coal refuse disposal facility for noncompliance, listed as paragraphs (1)—(3). The three circumstances which will terminate the temporary cessation status are failure to comply with a final adjudicated proceeding through an act or omission which violates the acts defined in § 86.1 or Chapters 86—90; failure to comply with a permit condition required by the acts or Chapters 86—90; and failure to comply with a consent order and agreement or a consent order. The intent of this new subsection is to trigger the reclamation requirement for sites where chronic noncompliance exists and allows the Department to have the ability to begin reclamation, if necessary. In these cases, it is unlikely that the permittee will be able to meet their obligations to complete the required reclamation. The termination of temporary cessation status constitutes a final action of the Department and the Department will provide notice and an opportunity to appeal to the operator when this status changes and triggers the reclamation requirements.
§ 90.31. General requirements
The Act 74 amendments to the Coal Refuse Disposal Control Act provided for the Department to promulgate regulations to link operations generating coal refuse or related material to the coal refuse disposal area. Paragraph (6) is proposed to require the description of the operations that will be the source of the coal refuse to be disposed of in the application for a coal refuse disposal permit. As plans change, this facility information can be updated to include other related facilities.
§ 90.50. Design criteria: groundwater and surface water protection system
In response to Act 74, proposed amendments to subsection (b) add ''as specified in the permit'' as paragraph (1.1) to the list of triggers for the installation of the system for preventing precipitation from encountering coal refuse that will be installed to prevent adverse impacts to groundwater and surface water. Paragraph (2) is revised to update the reference to subsection (b) in § 90.167 (relating to cessation of operations: temporary) to reflect the proposed amendments to that section.
§ 90.122. Coal refuse disposal
Proposed amendments to subsection (h) parallel the language from Act 74 relating to when the system to prevent precipitation from encountering the coal refuse is to be implemented. Paragraphs (1)—(4) are proposed to be deleted and reserved and paragraphs (5)—(8) are proposed to be added to list the instances when an operator must install the system to prevent precipitation from contacting the coal refuse. These include when each phase of the operation reaches capacity; when specified in the permit; when an operator temporarily ceases operation for a period of 90 days or more; or when the operation permanently ceases. The construction and design requirements currently contained in paragraphs (1) and (3) of subsection (h) are moved to proposed subsection (h).
The Department observed confusion among applicants regarding the purpose of terraces at coal refuse disposal sites and the need for clarification in the regulations. Subsection (m) is proposed to be revised to require terraces to control erosion and enhance stability and make their use as roads optional. With the existing regulations, terraces are not required if the maximum overall completed outslopes in subsection (m) are not exceeded, but terraces are required to break up lengthy outslopes of very large coal refuse embankments to control erosion and prevent cascading failures of the final cap and soil on an entire embankment outslope. A proposed amendment will change the reference in this subsection from subsection (n) to (o) because terraces are needed to divert the drainage off of the fill and not as a diversion adjacent to or above the fill.
The Department's experience with reviewing the applications for coal refuse disposal sites noted that part of the subsection referenced for diverting surface water runoff cannot be satisfied as written and the intent of the subsection is confusing. Subsection (n) is proposed to be amended to clarify the design requirements for diverting surface water runoff away from the fill. The reference to all subsections of § 90.104 (relating to hydrologic balance: diversions) are proposed to be amended by deleting the reference to § 90.104(b) as the design requirements of § 90.104(b) conflict with the hydraulic requirements in this section and the requirement to maintain diversion channels located above the refuse fills in perpetuity.
When reviewing coal refuse disposal site applications, the Department has observed that the applications often require technical deficiency letters due to confusion caused by incorrect or nonapplicable section references in the existing regulations. Subsection (o) is proposed to be amended to require surface water runoff diverted off of the fill to be conveyed in channels in natural ground or suitable engineered fill. The reference to § 90.104 and § 90.105 (relating to stream channel diversions) is proposed to be deleted as they are confusing and conflict with the design requirements in this section. Diverted off the fill is a different function than a diversion channel located adjacent to or above the fill and § 90.105 is not related to the management of disposal area runoff.
§ 90.167. Cessation of operations: temporary
Act 74 amended section 6.1 of the Coal Refuse Disposal Control Act to conform with the regulations and standards for temporary cessation under Federal law. To be consistent with the Federal regulations at 30 CFR 816.131, subsection (a) is proposed to be amended, and the existing requirements for temporary cessation for bituminous coal refuse disposal sites are proposed to be amended as follows.
Proposed amendments to subsection (a), which are based on the Federal requirements, will address temporary cessation status of operations lasting 30 days or more and will require a notice to be submitted to the Department. The list of items that must be included in this notice are enumerated as paragraphs (1)—(4) and include the affected acres in the permit area; a description of the extent and kind of reclamation of the area; a description of the activities that will continue during the temporary cessation status; and a description of the status of the operation or operations that is the source of the coal refuse. Proposed paragraphs (1)—(3) are based on the Federal regulations and are in the existing subsection (a). Paragraph (4) is proposed to be added based on the language in Act 74 to provide for the connection of coal refuse or related material to the coal refuse disposal area.
Proposed amendments to subsection (b) address temporary cessation status of operations lasting 90 days or more and in addition to the items required to be submitted in subsection (a), there are two additional items that must be included in the notice submitted to the Department. These items may be submitted at the same time as the subsection (a) notice or subsequent to that notice. These two additional items are enumerated as paragraphs (1) and (2) and include the confirmation that the current bond is adequate to complete reclamation and the timing of the installation of the phased system to prevent precipitation from contacting the refuse. The difference in requirements between subsections (a) and (b) ensures the operator does not need to address longer-term requirements if the temporary cessation will last less than 90 days. While this distinction is not found in the Federal requirements nor Act 74, it is proposed because the amendments will allow for an unlimited time for cessation. The confirmation that the bond amount is adequate to complete the reclamation of the site as it currently exists is necessary to assure that the site can be fully reclaimed if the site ends up in bond forfeiture. The requirement for a schedule for the system to prevent precipitation from coming into contact with the refuse is proposed to assure that the potential water quality impacts of long-term cessation are mitigated. The existing statement about exemptions for a seasonal shutdown or labor strike is proposed to be deleted from this subsection as a justification for a longer temporary cessation is no longer needed since the upper time limit is proposed to be deleted.
Proposed amendments to subsection (c) include the obligation to comply with the environmental protection statutes or ''acts'' as defined in § 86.1 and Chapters 86—90, in addition to the provisions of the permit. Currently, subsection (c) only requires compliance with the provisions of the permit. The proposed amendments clarify that operators are required to submit a permit renewal while under temporary cessation.
Subsection (d) is proposed to be deleted and reserved since Act 74 removed the 1-year limitation on temporary cessation. The installation of the system preventing precipitation from contacting the coal refuse is proposed to be included in subsection (b), which addresses the requirements for temporary cessation of 90 days or more.
Proposed subsection (e) states that temporary cessation status ends as a result of the resumption of coal refuse disposal operations and any subsequent notices of temporary cessation status must include updated information that is outlined in § 90.167.
Proposed subsection (f) states that temporary cessation status for the coal refuse disposal operation ends when an operation that is a source of the coal refuse resumes its operations or ends by permanent cessation.
Proposed subsection (g) states that temporary cessation status for the coal refuse disposal operation ends when the coal refuse disposal operation itself ends by permanent cessation as specified in § 90.168 (relating to cessation of operations: permanent).
§ 90.168. Cessation of operations: permanent
While neither the Federal regulations nor statute address this, subsection (b) is proposed to be added to this section to provide a trigger for when a temporary cessation has developed into a permanent cessation. This necessitates the lettering of the existing language as subsection (a). Proposed subsection (b) describes the circumstances that will terminate the temporary cessation status of a coal refuse disposal facility for noncompliance, listed as paragraphs (1)—(3). The three circumstances which will terminate the temporary cessation status are failure to comply with a final adjudicated proceeding through an act or omission which violates the acts defined in § 86.1 or Chapters 86—90; failure to comply with a permit condition required by the acts or Chapters 86—90; and failure to comply with a consent order and agreement or a consent order. The intent of this new paragraph is to trigger the reclamation requirement for sites where chronic noncompliance exists and allows the Department to have the ability to begin reclamation, if necessary. In these cases, it is unlikely that the permittee will be able to meet their obligations to complete the required reclamation. The termination of temporary cessation status constitutes a final action of the Department and the Department will provide notice and an opportunity to appeal to the operator when this status changes and triggers the reclamation requirements.
§ 90.202. General requirements
Proposed amendments to subsection (b)(1) change the reference to a ''coal preparation facility'' to a ''coal mining activity.'' This change is proposed because not all coal refuse is the result of coal preparation. For example, some surface mines will take their refuse to a refuse disposal site. The existing language is also inconsistent with the language in section of 4.1 the Coal Refuse Disposal Control Act (52 P.S. § 30.54a).
F. Benefits, Costs and Compliance
Benefits
This proposed rulemaking will make the Department's regulations consistent with State law and Federal regulations related to the operation of coal refuse disposal areas. This proposed rulemaking will clarify when an operator must install a system for preventing precipitation from encountering coal refuse, which will improve environmental protection by reducing the likelihood that precipitation will generate a pollutional discharge from the site. This proposed rulemaking will establish a relationship between the coal refuse disposal area and the source of the refuse, which will improve environmental protection by ensuring that disposal areas do not remain unreclaimed long after the source has ceased generating refuse. This proposed rulemaking is not expected to directly improve public health, although it may have an indirect public health benefit to the extent that it reduces the likelihood of pollutional discharges from coal refuse disposal areas.
Compliance costs
Existing and future permittees of coal refuse disposal sites will be required to comply with this proposed rulemaking. This proposed rulemaking will not create any new compliance costs and it is not expected to prevent or avoid costs. This proposed rulemaking will provide clearer requirements on the existing requirements which may avoid costs associated with navigating unclear requirements that could be inconsistently interpreted or applied.
Compliance assistance plan
Compliance assistance for this proposed rulemaking will be provided through the Department's routine interaction with trade groups and individual applicants. No financial assistance will be necessary or provided.
Paperwork requirements
This proposed rulemaking does not require additional paperwork.
G. Pollution Prevention
The Federal 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 proposed rulemaking incorporates the following pollution prevention incentives: it will clarify when an operator must install a system for preventing precipitation from encountering coal refuse, which will improve environmental protection by reducing the likelihood that precipitation will generate a pollutional discharge from the site; and require some relationship between the coal refuse disposal area and the source of the refuse, which will improve environmental protection by ensuring that disposal areas do not remain unreclaimed long after the source has ceased generating refuse.
H. Sunset Review
The Board is not establishing 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.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on October 20, 2021, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor.
J. Public Comments
Interested persons are invited to submit to the Board written comments, suggestions, support or objections regarding the proposed rulemaking. Comments, suggestions, support or objections must be received by the Board by December 6, 2021.
Comments may be submitted to the Board online, by e-mail, by mail or express mail as follows.
Comments may be submitted to the Board by accessing eComment at http://www.ahs.dep.pa.gov/eComment.
Comments may be submitted to the Board by e-mail at RegComments@pa.gov. A subject heading of this proposed rulemaking and a return name and address must be included in each transmission.
If an acknowledgement of comments submitted online or by e-mail is not received by the sender within 2 working days, the comments should be retransmitted to the Board to ensure receipt. Comments submitted by facsimile will not be accepted.
Written comments should be mailed to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477. Express mail should be sent to the Environmental Quality Board, Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301.
K. Public Hearings
If sufficient interest is generated as a result of this publication, a public hearing will be scheduled at an appropriate location to receive additional comments.
PATRICK McDONNELL,
ChairpersonFiscal Note: 7-565. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 88. ANTHRACITE COAL
Subchapter D. ANTHRACITE REFUSE DISPOSAL: MINIMUM ENVIRONMENTAL PROTECTION PERFORMANCE STANDARDS § 88.310. Coal refuse disposal: general requirements.
(a) Coal refuse shall be hauled or conveyed to and placed in designated disposal areas authorized for that purpose. The refuse shall be placed in a controlled manner to ensure the following:
(1) The land mass designated as the disposal area is suitable for reclamation and revegetation compatible with the natural surroundings.
(2) Stability of the disposal area.
(3) Leachate and surface runoff from the disposal area will not degrade surface waters or groundwaters or exceed the established effluent limitations.
(b) The disposal area shall be designed using recognized professional standards and approved by the Department. The design shall be certified by a registered professional engineer.
(c) Trees, grasses, shrubs and other organic materials shall be removed for a distance of 50 feet from the current disposal area concurrent with the placement of refuse.
(d) Slope protection shall be provided to minimize surface erosion at the site. The disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.
(e) The coal refuse to be placed in the fill shall be hauled or conveyed and placed in horizontal lifts in a controlled manner, concurrently compacted as necessary to ensure mass stability and prevent mass movement, covered and graded to allow surface and subsurface drainage to be compatible with the natural surroundings, and ensure a long-term static safety factor of 1.5 and seismic safety factor of 1.2.
(f) The final configuration of the disposal shall be suitable for the approved postmining land uses.
(g) Terraces may be utilized to control erosion and enhance stability if approved by the Department.
(h) If the disposal area contains springs, natural or manmade water-courses or wet-weather seeps, an underdrain system consisting of durable rock shall be constructed from the wet areas in a manner that prevents infiltration of the water into the spoil material. The underdrain system shall be designed and constructed using standard geotechnical engineering methods.
(i) Coal refuse may be returned to underground mine workings, but only in accordance with a disposal program approved by the Department and the Mine Safety and Health Administration.
(j) The system to prevent adverse impacts to the surface water and groundwater shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit and shall function to prevent adverse impacts to surface water and groundwater.
(k) The system to prevent precipitation from coming in contact with the coal refuse shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles and cross-sections approved in the permit and shall function to prevent precipitation from contacting the coal refuse. The following apply:
(1) The system shall be installed [as phases of the disposal area reach capacity, as specified in the permit, when the operation temporarily ceases for a period in excess of 90 days (unless the Department approves a longer period, not to exceed 1 year) or when the operation permanently ceases.] :
(i) as phases reach capacity;
(ii) as specified in the permit;
(iii) when the operation temporarily ceases for a period in excess of 90 days unless the Department approves an operator's request for a longer period for installation of the system; or
(iv) when the operation permanently ceases.
(2) The system shall be designed to allow for revegetation of the site in accordance with the standard of success under § 88.330 (relating to revegetation: standards for successful revegetation) and for prevention of erosion.
§ 88.332. Cessation of operations: temporary.
(a) [As soon as it is known that the operation will temporarily cease for more than 30 days, the operator shall submit a notice of intention, in writing, to temporarily cease the operation. The notice shall include a statement of the exact number of acres which will have been affected in the permit area, the extent and kind of reclamation of those areas, and identification of the backfilling, regrading, revegetation, monitoring and water treatment activities that will continue during the temporary cessation. The system for preventing precipitation from contacting the coal refuse shall be installed when the temporary cessation exceeds 90 days. The Department may approve a longer period, not to exceed 1 year, consistent with section 6.1(i) of the Coal Refuse Disposal Control Act (52 P.S. § 30.56a(i)).] 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 all of the following:
(1) A statement of the exact number of acres affected in the permit area.
(2) A description of the extent and kind of reclamation of the areas.
(3) Identification of the backfilling, regrading, revegetation, environmental monitoring and water treatment activities that will continue during the temporary cessation status.
(4) A description of the status of all operations that are a source of the coal refuse.
(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.] Before temporary cessation status of operations for a period of 90 days or more, an operator shall submit to the Department a notice that may be included in, or submitted subsequent to, the notice required under subsection (a), that includes all of the following:
(1) Confirmation that the current bond under the permit is sufficient to complete the reclamation of the coal refuse area.
(2) The timing of the installation of the phased system to prevent precipitation from contacting the refuse.
(c) [Temporary cessation does not relieve the operator of the obligation to comply with any provisions of the permit.] 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), this chapter or Chapters 86, 87, 89 or 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.
(d) Temporary cessation status of a coal refuse disposal operation ends with the resumption of operations at that site. Any subsequent notices of temporary cessation status following resumption of coal refuse operations must include updated information outlined in this section.
(e) Temporary cessation status of a coal refuse disposal operation ends with the resumption of operations at a source of the coal refuse or by permanent cessation at all sources of the coal refuse.
(f) Temporary cessation status of a coal refuse disposal operation ends with the permanent cessation of operations as specified in § 88.333 (relating to cessation of operations: permanent).
§ 88.333. Cessation of operations: permanent.
(a) Operations that are permanently ceased shall be backfilled or closed or otherwise permanently reclaimed in accordance with this chapter and the permit. All underground openings, equipment, structures or other facilities not required for monitoring, unless approved by the Department as suitable for the postmining land use, shall be removed and the affected land reclaimed.
(b) Unless coal refuse disposal operations resume as specified in § 88.332(d) or (e) (relating to cessation of operations: temporary), termination of temporary cessation status will place the mining operation in permanent cessation status and subject to the provisions of subsection (a). Temporary cessation status will terminate for operations that fail to comply with any of the following:
(1) A final adjudicated proceeding as defined under § 86.355(e) (relating to criteria for approval of application) as a result of an act or omission which violates the acts as defined in § 86.1 (relating to definitions), this chapter or Chapters 86, 87, 89 or 90.
(2) A permit condition required by the acts, this chapter or Chapters 86, 87, 89 or 90.
(3) A consent order and agreement or a consent order.
CHAPTER 90. COAL REFUSE DISPOSAL
Subchapter C. MINIMUM OPERATION AND RECLAMATION PLAN INFORMATION REQUIRED IN APPLICATIONS FOR COAL REFUSE DISPOSAL § 90.31. General requirements.
An application shall contain a description of the coal refuse disposal activities proposed to be conducted during the life of the coal refuse disposal operations within the proposed permit area, including, at a minimum, the following:
(1) A narrative description of the type and method of coal refuse disposal procedures and proposed engineering techniques and the major equipment to be used during operations.
(2) A narrative explaining the construction, modification, use, maintenance and removal of the following facilities and structures, unless retention of the facility or structure is necessary for postdisposal land use as specified in § 90.166 (relating to postdisposal land use):
(i) Dams, embankments and other impoundments.
(ii) Overburden and topsoil handling and storage areas.
(iii) Coal removal, handling, storage, cleaning, processing and transportation areas and structures.
(iv) Spoil, coal refuse, mine development waste and noncoal waste removal, handling, storage, transportation and disposal areas and structures.
(v) Mine facilities.
(vi) Water and air pollution control facilities.
(vii) Erosion and sediment control facilities.
(3) A description of the measures to be employed to ensure that all debris, potential acid-forming and potential toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with this chapter and a description of the contingency plans which have been developed to preclude combustion of the materials.
(4) A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, line or manage exploration holes, other boreholes, wells and other openings within the proposed permit area.
(5) A demonstration that the notification requirements of § 86.31(e) (relating to public notices of filing of permit application) have been satisfied.
(6) A description of the operations that are proposed to be the source or sources of the coal refuse to be disposed of at the coal refuse disposal facility and the types of refuse to be disposed.
§ 90.50. Design criteria: groundwater and surface water protection system.
(a) The application shall include a description of the system that will be installed to prevent adverse impacts to groundwater and surface water. The description shall include maps, plans and other information necessary to evaluate the design of the system.
(b) The application shall include a description of the system that will be installed to prevent precipitation from coming into contact with the coal refuse. The description shall include maps, plans and other information necessary to evaluate the design of the system. The coal refuse disposal operation shall be designed in phases to minimize the amount of time the entire coal refuse area is exposed to precipitation prior to the installation of the system to prevent precipitation from contacting the coal refuse. The application shall describe the design of the system for preventing precipitation from contacting coal refuse and how the system will be installed in accordance with the following:
(1) During routine coal refuse disposal as phases of the coal refuse disposal area reach capacity.
(1.1) As specified in the permit.
(2) During periods of temporary cessation as directed under [§ 90.167(d)] § 90.167(b) (relating to cessation of operations: temporary).
(3) When the operation permanently ceases.
(c) The Department's technical guidance Document Number 563-2112-656, titled Liners—Impoundments, Stockpiles, and Coal Refuse Disposal Areas, shall be used as guidance for designing coal refuse disposal sites incorporating earthen, admixed or synthetic liners or caps for preventing adverse impacts to groundwater and surface water and for preventing precipitation from contacting coal refuse.
(d) The application shall include a description of the measures to be taken to ensure the long-term functionality of the systems described in subsections (a) and (b). The description shall address the site's susceptibility to mine subsidence and the potential impacts of mine subsidence on the systems described in subsections (a) and (b). The description shall also address the potential for deterioration of components of the systems described in subsections (a) and (b) due to other physical or chemical processes including but not limited to attack from sulfate-laden or acidic groundwater and/or leachate.
Subchapter D. PERFORMANCE STANDARD FOR COAL REFUSE DISPOSAL § 90.122. Coal refuse disposal.
(a) Coal refuse shall be transported and placed in designated disposal areas approved by the Department for this purpose. These areas shall be within the permit area. The coal refuse disposal area shall be designed, constructed and maintained to ensure:
(1) The leachate and surface runoff from the permit area will not degrade surface water or groundwater or exceed the effluent limitations of § 90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).
(2) Prevention of combustion.
(3) Prevention of public health hazards.
(4) Stability of the fill.
(5) The land mass designated as the coal refuse disposal area is suitable for reclamation and revegetation compatible with the natural surroundings.
(b) The fill shall be designed using recognized professional standards, certified by a qualified registered professional engineer, and approved by the Department.
(c) The foundation and abutment of the fill shall be stable under all conditions of construction and operation. Sufficient foundation investigations and laboratory testing of foundation materials and coal refuse shall be performed to determine the design requirements for stability of the facility. Analyses of foundation conditions shall include the effect of underground mine workings, if any, upon the stability of the structure.
(d) The coal refuse disposal fill shall be designed to attain a minimum long-term static factor of safety of 1.5 and a minimum seismic factor of safety of 1.2, based upon data obtained from subsurface exploration, geotechnical testing, foundation design, fill design and accepted engineering analyses.
(e) When the average slope of coal refuse disposal area exceeds [lv:2.h-36%] lv:2.8h—36%, or lesser slopes as may be designated by the Department based on local conditions, key way cuts, or excavation into stable bedrock or bedrock toe buttresses shall be constructed to stabilize the fill. When the toe of the fill rests on a downslope, stability analysis shall be performed in accordance with § 90.39 (relating to ponds, impoundments, banks, dams, embankments, piles and fills) to determine the size of rock toe buttresses and key way cuts.
(f) If the disposal area contains springs, natural or manmade watercourses, or wet-weather seeps, the Department may approve an underdrain/subdrainage system, consisting of durable rock or other materials, designed and placed in a manner that prevents infiltration of the water into the fill material and ensures continued free drainage from the wet areas.
(g) The disposal area shall be provided with a system to prevent adverse impacts to the surface water and groundwater. The system shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit and shall function to prevent adverse impacts to surface water and groundwater.
(h) [When a phase of the coal refuse disposal area reaches capacity, the operator shall install a system to prevent precipitation from coming in contact with the coal refuse in the completed phase.] The operator shall install a system to prevent precipitation from coming in contact with the coal refuse. The system shall be constructed in accordance with the design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit, and designed to allow for revegetation of the site in accordance with the standard of success under § 90.159 (relating to revegetation: standards for successful revegetation) and for the prevention of erosion:
(1) [The system shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit.] (Reserved).
(2) [During normal coal refuse disposal, the system is not required to prevent precipitation from coming in contact with the coal refuse being placed in phases of the operation that have not reached capacity.] (Reserved).
(3) [The system shall be designed to allow for revegetation of the site in accordance with the standard of success under § 90.159 (relating to revegetation: standards for successful revegetation) and for the prevention of erosion.] (Reserved).
(4) [If the operator temporarily ceases operation of the coal refuse disposal area for a period in excess of 90 days (unless the Department, for reasons of labor strike or business necessity, approves a longer period not to exceed 1 year) unless the Department approves an operator's request for a longer period, or when the operation permanently ceases, the operator shall install the system for preventing precipitation from contacting the coal refuse.] (Reserved).
(5) as phases reach capacity;
(6) as specified in the permit;
(7) if the operator temporarily ceases operation of the coal refuse disposal area for a period in excess of 90 days, unless the Department approves an operator's request for a longer period for the installation of the system; or
(8) when the operation permanently ceases.
(i) An underdrain/subdrainage system for the fill shall be designed in accordance with the following:
(1) It shall include an underdrain system which will ensure continued free drainage of anticipated seepage from precipitation and from spring or wet-weather seeps, and meet the following:
(i) Anticipated discharges from springs and seeps due to precipitation shall be based on records or field investigation or both, to determine seasonal variation. The design of the underdrain system shall be based on maximum anticipated discharges.
(ii) Granular material used for the drainage system shall be nondegradable, nonacid-forming or nontoxic-forming rock free of clay, and consist of durable particles such as natural sands and gravels, sandstone, limestone or other durable rock which will not flake in water.
(2) The underdrain system shall be designed to be installed along the natural drainage system; extend from toe to head of fill; and contain lateral drains to each area of potential drainage or seepage.
(3) A filter system to ensure the proper functioning of the rock underdrain system shall be designed and constructed using standard geotechnical engineering methods.
(j) The final configuration of the fill shall be suitable for the post disposal land use approved under § 90.165 (relating to prime farmland: revegetation), except that no depression or impoundment may be allowed on the completed fill. New coal refuse disposal piles and area of piles active since May 17, 1973, shall blend into the local surroundings. Unless otherwise approved by the Department, the fill may not be designed to exceed the approximate elevation of the surrounding ridgeline.
(k) The maximum overall completed slope of the coal refuse disposal pile measured from toe of the fill to crest of upper terrace may not exceed 33% or 18 degrees.
(l) The top surface of the completed fill shall be graded so that the final slope after settlement will be no steeper than lv:20h—5.0% toward properly designed drainage channels in natural ground along the periphery of the fill. Surface runoff from the top surface of the fill may not be allowed to flow over the outslope of the fill.
(m) Terraces [may] must be utilized to control erosion[,] and enhance stability, [or] and may be utilized for roads included in postmining land use.
(1) The slope of the outslope between terraces may not exceed [lv:2h-50A4%] lv:2h—50A4%. The vertical distance between terraces may not exceed 50 feet.
(2) To control surface runoff, each terrace bench will be a minimum of 20 feet wide, shall be graded to a slope of lv:20h—5.0% toward the embankment. Runoff shall be collected by a ditch along the intersection of each terrace bank and the toe of the next higher outslope.
(3) Terrace ditches shall have a maximum 5.0% slope toward the channels specified in subsection [(n)] (o) unless steeper slopes are necessary in conjunction with approved roads.
(n) [Surface water runoff from the areas adjacent to and above the fill may not be allowed to flow onto the fill and shall be diverted into stabilized channels which are designated to pass safely the peak runoff from a 100-year precipitation event. Diversion design shall comply with § 90.104 (relating to hydrologic balance: diversions).] Surface water runoff from areas adjacent to and above the fill shall be diverted away from the fill in stabilized channels which are designed to safely pass the peak runoff from a 100-year precipitation event. Diversion channels shall also comply with § 90.104(a) and (c)—(h) (relating to hydrologic balance: diversions).
(o) [Surface water runoff from the fill shall be diverted off the fill to properly designated channels which will pass safely the peak runoff from a 100-year precipitation event. Diversion design shall comply with § 90.104 and § 90.105 (relating to stream channel diversions).] Surface water runoff from the fill shall be collected and conveyed in properly designed channels constructed in natural ground or engineered fill of inert material along the periphery of the fill. The channels must safely pass the peak runoff from a 100-year precipitation event.
(p) Slope protection shall be provided to minimize surface erosion at the site. Disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.
(q) Coal refuse shall be hauled or conveyed and placed in a controlled manner and concurrently compacted as approved by the Department in lifts no greater than 2 feet, or less, as required or approved by the Department, as the design to:
(1) Achieve the densities designed to ensure mass stability.
(2) Prevent mass movement.
(3) Avoid contamination of the rock underdrain.
(4) Prevent formation of voids.
(r) Vegetative and organic materials shall be removed from the area where coal refuse is disposed of, and for a distance of 50 feet from the perimeter of the area where coal refuse is disposed, the topsoil shall be removed, segregated and stored or replaced as provided in §§ 90.96—90.100. If approved by the Department, organic material may be used a mulch or may be included in the topsoil to control erosion, promote growth of vegetation or increase the moisture retention of the soil.
§ 90.167. Cessation of operations: temporary.
(a) [As soon as it is known that the operation will temporarily cease for more than 30 days, the operator shall submit a notice of intention, in writing, to temporarily cease the operation. The notice shall include a statement of the exact number of acres that will have been affected in the permit area, the extent and kind of reclamation of those areas, and identification of the disposal, regrading, revegetation, monitoring and water treatment activities which will continue during the temporary cessation.] 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 all of the following:
(1) A statement of the exact number of acres affected in the permit area.
(2) A description of the extent and kind of reclamation of the areas.
(3) Identification of the backfilling, regrading, revegetation, environmental monitoring and water treatment activities that will continue during the temporary cessation status.
(4) A description of the status of all operations that are a source of the coal refuse.
(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.] Before temporary cessation status of operations for a period of 90 days or more, an operator shall submit to the Department a notice that may be included in, or submitted subsequent to, the notice required under subsection (a) and shall include all of the following:
(1) Confirmation that the current bond under the permit is sufficient to complete the reclamation of the coal refuse area.
(2) The timing of the installation of the phased system to prevent precipitation from contacting the refuse.
(c) [Temporary cessation does not relieve the operator of the obligation to comply with any provisions of the permit.] 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), this chapter or Chapters 86, 87, 88 or 89 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.
(d) [The operator shall install the system for preventing precipitation from contacting the coal refuse when the temporary cessation exceeds 90 days. The Department may approve a longer period, not to exceed 1 year, for reasons of a labor strike or business necessity.] (Reserved).
(e) Temporary cessation status of a coal refuse disposal operation ends with the resumption of operations at that site. Any subsequent notices of temporary cessation status following resumption of coal refuse operations must include updated information outlined in this section.
(f) Temporary cessation status of a coal refuse disposal operation ends with the resumption of operations at a source of the coal refuse or by permanent cessation at all sources of the coal refuse.
(g) Temporary cessation status of a coal refuse disposal operation ends with the permanent cessation of operations as specified in § 90.168 (relating to cessation of operations: permanent).
§ 90.168. Cessation of operations: permanent.
(a) Operations that are permanently ceased shall be backfilled or closed or otherwise permanently reclaimed in accordance with this chapter and the permit. All underground openings, equipment, structures or other facilities not required for monitoring, unless approved by the Department as suitable for the postmining land use, shall be removed and the affected land reclaimed.
(b) Unless coal refuse disposal operations resume as specified in § 90.167(e) or (f) (relating to cessation of operations: temporary), termination of temporary cessation status will place the mining operation in permanent cessation status and subject to the provisions of subsection (a). Temporary cessation status will terminate for operations that fail to comply with any of the following:
(1) A final adjudicated proceeding as defined under § 86.355(e) (relating to criteria for approval of application) as a result of an act or omission which violates the acts as defined in § 86.1 (relating to definitions), this chapter or Chapters 86, 87, 88 or 89.
(2) A permit condition required by the acts, this chapter or Chapters 86, 87, 88 or 89.
(3) A consent order and agreement or a consent order.
Subchapter E. SITE SELECTION § 90.202. General requirements.
(a) A preferred site shall be used for coal refuse disposal unless the applicant demonstrates to the Department that an alternate site is more suitable based upon engineering, geology, economics, transportation systems, and social factors and is not adverse to the public interest.
(b) The applicant is required to determine whether the search area contains a preferred site.
(1) For a new coal refuse disposal area that will support an existing coal [preparation facility] mining activity, the applicant shall examine the geographic area within a 1-mile radius of the existing coal [preparation facility] mining activity.
(2) For a proposed coal refuse disposal area that will support a proposed coal preparation facility, the applicant shall examine a 25-square mile geographic area encompassing the proposed coal preparation facility. In defining the 25-square mile area, consideration shall be given to environmental, technical, transportation, economic and social factors where applicable.
(c) If there are no preferred sites located within the search area, the applicant shall conduct a comparative analysis of the potential coal refuse disposal sites in accordance with § 90.204(b) (relating to proposing an alternate site).
(d) The Department will not approve a site proposed by the applicant for coal refuse disposal activities when the Department finds that the adverse environmental impacts of using the site for coal refuse disposal activities would clearly outweigh the public benefits.
(e) Except on preferred sites, the Department will not approve coal refuse disposal on or within any of the following areas:
(1) Prime farmlands.
(2) An exceptional value watershed as defined under Chapter 93 (relating to water quality standards).
(3) Sites known to contain threatened or endangered animals listed exclusively under the Commonwealth's protection programs.
(4) An area that is hydrologically connected to and contributes at least 5% of the drainage to wetlands designated as exceptional value under Chapter 105 (relating to dam safety and waterway management) unless a larger percentage contribution is authorized by the Department after consultation with the Fish and Boat Commission.
(5) A watershed less than 4 square miles in area upstream of the intake of a public water supply.
(6) A watershed less than 4 square miles in area upstream of the upstream limit of a public recreational impoundment.
(7) Sites known to contain Federally listed threatened or endangered plants or animals. At preferred sites known to contain Federally listed threatened or endangered species, approval will be granted only when the Department concludes and the United States Fish and Wildlife Service concurs that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the take of Federally listed threatened or endangered species in violation of section 9 of the Endangered Species Act of 1973 (16 U.S.C.A. § 1538).
(f) As part of the site selection process, an applicant may request approval for more than one site. The Department will evaluate each site proposed for coal refuse disposal and, if the Department finds that a proposed site meets the requirements of this subchapter, it will designate it as an approved site. The applicant will then have the option of choosing a selected site from among the approved sites and submitting an application for coal refuse disposal for that site.
[Pa.B. Doc. No. 21-1836. Filed for public inspection November 5, 2021, 9:00 a.m.]
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