Subchapter E. SITE SELECTION
Sec.
90.201. Definitions.
90.202. General requirements.
90.203. Proposing a preferred site.
90.204. Proposing an alternate site.
90.205. Alternatives analysis.
90.206. Disapproval of a proposed site.
90.207. Approval of a selected site.
Source The provisions of this Subchapter E adopted July 13, 2001, effective July 14, 2001, 31 Pa.B. 3735, unless otherwise noted.
Cross References This subchapter cited in 25 Pa. Code § 88.281 (relating to requirements); 25 Pa. Code § 90.5 (relating to site selection and permitting); 25 Pa. Code § 90.45 (relating to prime farmland); and 25 Pa. Code § 90.49 (relating to stream buffer zone variance).
§ 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.
Search area—The geographic area within a 1-mile radius of an existing coal preparation facility or the 25-square mile geographic area encompassing a proposed coal preparation facility.
Selected site—A location selected by the applicant and approved by the Department under this subchapter for which the applicant can then apply for a permit to conduct coal refuse disposal activities.
Authority The provisions of this § 90.201 amended under 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).
Source The provisions of this § 90.201 amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (281271) to (281272).
§ 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 mining activity, the applicant shall examine the geographic area within a 1-mile radius of the existing coal 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.
Authority The provisions for this § 90.202 amended under section 5 of The Clean Streams Law (35 P.S. § 691.5), section 4.2(a) 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).
Source The provisions of this § 90.202 amended September 9, 2022, effective September 10, 2022, 52 Pa.B. 5804. Immediately preceding text appears at serial pages (401080) to (401081) and (384051).
Cross References This section cited in 25 Pa. Code § 90.203 (relating to proposing a preferred site); 25 Pa. Code § 90.204 (relating to proposing an alternate site); and 25 Pa. Code § 90.205 (relating to alternatives analysis).
§ 90.203. Proposing a preferred site.
If the applicant proposes to use a preferred site, the Department will approve the proposed site subject to § 90.202(c) (relating to general requirements) provided the applicant demonstrates that the attendant adverse environmental impacts will not clearly outweigh the public benefits.
§ 90.204. Proposing an alternate site.
(a) Where a preferred site exists within the search area, but the applicant proposes an alternate site, the applicant shall:
(1) Demonstrate that the alternate site is more suitable, using criteria in § 90.202(a) (relating to general requirements), than all preferred sites within the search area.
(2) Identify other alternate sites considered and provide the basis for the rejection of these sites.
(3) Based on reasonably available data, demonstrate that it is the most suitable site based on environmental, economic, technical, transportation and social factors.
(b) If a preferred site does not exist within the search area, the applicant shall:
(1) Identify all the sites considered within the search area and provide the basis for their consideration.
(2) Provide the basis for the rejection of considered sites.
(3) Based on reasonably available data, demonstrate to the Department that the proposed site is the most suitable based on environmental, economic, technical, transportation and social factors.
Cross References This section cited in 25 Pa. Code § 90.202 (relating to general requirements); and 25 Pa. Code § 90.205 (relating to alternative analysis).
§ 90.205. Alternatives analysis.
The alternatives analysis required by § § 90.202(b) and 90.204 (relating to general requirements; and proposing an alternate site) satisfies the requirement for an alternatives analysis under the Dam Safety and Encroachments Act (32 P.S. § § 693.1—693.27) and regulations promulgated thereunder. See Chapter 105 (relating to dam safety and waterway management).
§ 90.206. Disapproval of a proposed site.
If the Department disapproves the applicant’s proposed site, the applicant may submit a new proposal supporting the selection of another site located either within or outside of the search area.
§ 90.207. Approval of a selected site.
Department approval of a selected site does not indicate the Department will approve an application for coal refuse disposal activities for the selected site.
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