PENNSYLVANIA REGULATORY PROGRAM PENNSYLVANIA CODE (Pa. Code) TITLE 25 ENVIRONMENTAL PROTECTION CHAPTER 90. COAL REFUSE DISPOSAL SUBCHAPTER F COAL REFUSE DISPOSAL ACTIVITIES ON AREAS WITH PREEXISTING POLLUTIONAL DISCHARGES 25 Pa. Code Sec. 90.301 Scope. 25 Pa. Code Sec. 90.302 Definitions. 25 Pa. Code Sec. 90.303 Applicability. 25 Pa. Code Sec. 90.304 Application for authorization. 25 Pa. Code Sec. 90.305 Application approval or denial. 25 Pa. Code Sec. 90.306 Operational requirements. 25 Pa. Code Sec. 90.307 Treatment of discharges. 25 Pa. Code Sec. 90.308 Request for bond release. 25 Pa. Code Sec. 90.309 Criteria and schedule for release of bonds on pollution abatement areas. (Source: The provisions of this Subchapter F adopted July 13, 2001, effective July 14, 2001, 31 Pa.B. 3735, unless other wise noted.) NOTE: Cross references to OSM's federal regulations and SMCRA appear in double braces to the right of the Rule or Section number, e.g., " 25 Pa. Code Sec. 86.13. COMPLIANCE WITH PERMITS. {{ 30 CFR 773.17 }}". The cross references were compiled using the preambles to OSM's approval of amendments to the Pennsylvania regulatory program published in the Federal Register and from the file of Pennsylvania regulatory material in the COALEX Library in LexisNexis. 25 Pa. Code Sec. 90.301 SCOPE. (a) This subchapter specifies procedures and rules applicable to those who seek authorization to engage in coal refuse disposal activities on an area on which there are preexisting pollutional discharges resulting from previous mining and describes the terms and conditions under which the Department may release bonds to operators who have received authorization. (b) Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A D apply to authorizations to mine areas with preexisting pollutional discharges except as specifically modified by this subchapter. 25 Pa. Code Sec. 90.302 DEFINITIONS. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise: ABATEMENT PLAN Any individual technique or combination of techniques, the implementation of which will result in reduction of the base line pollution load. Abatement techniques include, but are not limited to: Addition of alkaline material, special plans for managing toxic and acid-forming material, regrading, revegetation and relocating coal refuse to a coal refuse disposal area that includes systems to prevent adverse impacts to surface and groundwater and to prevent precipitation from contacting the coal refuse. ACTUAL IMPROVEMENT The reduction of the baseline pollution load resulting from the implementation of the approved abatement plan; except that any reduction of the baseline pollution load achieved by water treatment may not be considered as actual improvement provided that treatment approved by the Department of the coal refuse before, during or after placement in the coal refuse disposal area will not be considered to be water treatment. BASELINE POLLUTION LOAD The characterization of the pollutional material being discharged from or on the pollution abatement area, described in terms of mass discharge for each parameter deemed relevant by the Department, including seasonal variations and variations in response to precipitation events. The Department will establish in each authorization the specific parameters it deems relevant for the baseline pollution load, including, at a minimum, iron and acid loadings. BEST PROFESSIONAL JUDGMENT The highest quality technical opinion forming the basis for the terms and conditions of the treatment level required after consideration of all reasonably available and pertinent data. The treatment levels shall be established by the Department under sections 301 and 402 of the Federal Water Pollution Control Act (33 U.S.C.A. Secs. 1311 and 1342). BEST TECHNOLOGY Measures and practices which will abate or ameliorate, to the maximum extent possible, discharges from or on the pollution abatement area. These measures include engineering, geochemical or other applicable practices. COAL REFUSE DISPOSAL ACTIVITIES The storage, dumping or disposal of any waste coal, rock, shale, slurry, culm, gob, boney, slate, clay, underground development wastes, coal processing wastes, excess soil and related materials, associated with or near a coal seam, that are either brought above ground or otherwise removed from a coal mine in the process of mining coal or are separated from coal during the cleaning or preparation operations. The term does not include the removal or storage of overburden from surface mining activities. EXCESS SOIL AND RELATED MATERIAL Rock, clay or other material located immediately above or below a coal seam and which are extracted from a coal mine during the process of mining coal. The term does not include topsoil or subsoil. POLLUTION ABATEMENT AREA The part of the permit area that is causing or contributing to the baseline pollution load. The term includes adjacent and nearby areas that must be affected to bring about significant improvements of the baseline pollution load and may include the immediate locations of the discharges. 25 Pa. Code Sec. 90.303 APPLICABILITY. (a) Authorization may be granted under this subchapter when the authorization is part of the following: (1) A permit issued after February 6, 1995, but only if the authorization request is made during one of the following periods: (i) At the time of the submittal of the permit application for the coal refuse disposal activities, including the proposed pollution abatement area. (ii) Prior to a Department decision to issue or deny that permit. (2) A permit revision under Sec. 86.52 (relating to permit revisions), but only if the operator affirmatively demonstrates to the satisfaction of the Department that: (i) The operator has discovered pollutional discharges within the permit area that came into existence after its permit application was approved. (ii) The operator has not caused or contributed to the pollutional discharges. (iii) The proposed pollution abatement area is not hydrologically connected to an area where coal refuse disposal activities have been conducted under the permit. (iv) The operator has not affected the proposed pollution abatement area by coal refuse disposal activities. (v) The Department has not granted a bonding authorization and mining approval for the area under Sec. 86.37(b) (relating to criteria for permit approval or denial). (b) Notwithstanding subsection (a), authorization will not be granted under this subchapter for repermitting under Secs. 86.12 and 86.14 (relating to continued operation under interim permits; and permit application filing deadlines), permit renewals under Sec. 86.55 (relating to permit renewals: general requirements) or permit transfers under Sec. 86.56 (relating to transfer of permit). 25 Pa. Code Sec. 90.304 APPLICATION FOR AUTHORIZATION. (a) An operator who requests authorization under this subchapter shall comply with the permit application requirements of Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A D, except as specifically modified by this subchapter. The operator shall also: (1) Delineate on a map the proposed pollution abatement area, including the location of the preexisting discharges. (2) Provide a description of the hydrologic balance for the proposed pollution abatement area that includes: (i) Results of a detailed water quality and quantity monitoring program, including seasonal variations, variations in response to precipitation events and modeled baseline pollution loads using this monitoring program. (ii) Monitoring for pH, alkalinity, acidity, total iron, total manganese, aluminum, sulfates, total suspended solids and other water quality parameters the Department deems relevant. (3) Provide a description of the abatement plan that represents best technology and includes the following: (i) Plans, cross-sections and schematic drawings describing the abatement plan proposed to be implemented. (ii) A description and explanation of the range of abatement level that is anticipated to be achieved, costs and each step in the proposed abatement plan. (iii) A description of the standard of success for revegetation necessary to ensure success of the abatement plan. (b) The operator seeking this authorization shall continue the water quality and quantity monitoring program required by subsection (a)(2) after making the authorization request. The operator shall submit the results of this continuing monitoring program to the Department on a monthly basis until a decision on the authorization request is made. 25 Pa. Code Sec. 90.305 APPLICATION APPROVAL OR DENIAL. (a) Authorization may not be granted under this subchapter unless the operator seeking the authorization affirmatively demonstrates the following to the satisfaction of the Department on the basis of information in the application: (1) Neither the operator, nor an officer, principal shareholder, agent, partner, associate, parent corporation, subsidiary or affiliate, sister corporation, contractor or subcontractor, or a related party as defined in Sec. 86.1 (relating to definitions) has either of the following: (i) Legal responsibility or liability as an operator for treating the water pollution discharges from or on the proposed pollution abatement area. (ii) Statutory responsibility or liability for reclaiming the proposed pollution abatement area. (2) The proposed abatement plan will result in significant reduction of the baseline pollution load and represents best technology. (3) The land within the proposed pollution abatement area can be reclaimed. (4) The coal refuse disposal activities on the proposed pollution abatement area will not cause additional surface water pollution or groundwater degradation. (5) The standard of success for revegetation will be achieved. The standard of success for revegetation for sites previously reclaimed to the standards of this chapter and Chapters 87 and 88 shall be the standards set forth in Sec. 90.159 (relating to revegetation: standards for successful revegetation). The standard of success for revegetation for sites not previously reclaimed to the standards of this chapter and Chapters 87 and 88 shall be, at a minimum, the following, provided the site is not a bond forfeiture site where the forfeited money paid into the fund is sufficient to reclaim the forfeited site to the applicable standards: (i) A ground cover of living plants not less than can be supported by the best available topsoil or other suitable material in the reaffected area. (ii) A ground cover no less than that existing before disturbance of the area by coal refuse disposal activities. (iii) Adequate vegetation to control erosion. Vegetation may be no less than that necessary to ensure the success of the abatement plan. (6) The coal refuse disposal activities on permitted areas other than the proposed pollution abatement area will not cause surface water pollution or groundwater degradation. (7) Requirements of Sec. 86.37(a) (relating to criteria for permit approval or denial) that are consistent with this section have been met. (b) An authorization may be denied under this subchapter if granting the authorization will, or is likely to, affect a legal responsibility or liability under The Clean Streams Law (35 P. S. Secs. 691.1 691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. Secs. 1396.1 1396.19a), Chapter 86 (relating to surface and underground coal mining: general) or Subchapters A D, for the proposed pollution abatement area or other areas or discharges in the vicinity of the proposed pollution abatement area. ( c) Authorization may not be granted under this subchapter unless there are one or more preexisting discharges from or on the pollution abatement area. (d) The authorization allowed under this subchapter is only for the pollution abatement area and does not apply to other areas of the permit. 25 Pa. Code Sec. 90.306 OPERATIONAL REQUIREMENTS. (a) An operator who receives an authorization under this subchapter shall comply with Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A D except as specifically modified by this subchapter. The operator shall also: (1) Implement the approved water quality and quantity monitoring program for the pollution abatement area until the requirements of Sec. 90.309 (relating to criteria and schedule for release of bonds on pollution abatement areas) are met. (2) Implement the approved abatement plan. (3) Notify the Department immediately prior to the completion of each step of the abatement plan. (4) Provide a progress report to the Department within 30 days after the completion of each step of the abatement program that includes a statement signed by the operator, and if required by the Department, a statement signed by the supervising engineer, that all work has been performed in accordance with the terms and conditions of the pollution abatement authorization, the approved maps, plans, profiles and specifications. 25 Pa. Code Sec. 90.307 TREATMENT OF DISCHARGES. (a) Except for preexisting discharges that are not encountered during coal refuse disposal activities or the implementation of the abatement plan, the operator shall comply with Sec. 90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).281279 (b) The operator shall treat the preexisting discharges that are not encountered during coal refuse disposal activities or implementation of the abatement plan to comply with the effluent limitations established by best professional judgment. The effluent limitations established by best professional judgment may not be less than the baseline pollution load. If the baseline pollution load, when expressed as a concentration for a specific parameter, satisfies the effluent limitation in Sec. 90.102 for that parameter, the operator shall treat the preexisting discharge for that parameter to comply with either effluent limitations established by best professional judgment or the effluent limitations in Sec. 90.102. ( c) For purposes of subsections (a) and (b), the term encountered may not be construed to mean diversions of surface water and shallow groundwater flow from areas undisturbed by the implementation of the abatement plan that would otherwise drain into the affected area, as long as the diversions are designed, operated and maintained under Sec. 90.104 (b) (h) (relating to hydrologic balance: diversions). (d) An operator required to treat preexisting discharges will be allowed to discontinue treating the discharges under subsection (b) when the operator affirmatively demonstrates the following to the Department's satisfaction: (1) The preexisting discharges are meeting the effluent limitations established by subsection (b) as shown by groundwater and surface water monitoring conducted by the operator or the Department. (2) Coal refuse disposal activities under the permit including the pollution abatement area are being or were conducted under the requirements of the permit and the authorization, and Chapter 86 (relating to surface and underground mining: general) and this chapter except as specifically modified by this subchapter. (3) The operator has implemented each step of the abatement plan as approved in the authorization. (4) The operator did not cause or allow additional surface water pollution or groundwater degradation by reaffecting the pollution abatement area. (e) If after discontinuance of treatment of discharges under subsection (d) the discharges fail to meet the effluent limitations established by subsection (b), the operator shall reinstitute treatment of the discharges under subsection (b). An operator who reinstitutes treatment under this subsection will be allowed to discontinue treatment if the requirements of subsection (d) are met. (f) Discontinuance of treatment under subsection (d) may not be deemed or construed to be or to authorize a release of bond under Sec. 90.309 (relating to criteria and schedule for release of bonds on pollution abatement areas). 25 Pa. Code Sec. 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 pollution abatement areas authorized by this subchapter. Section 86.172(a), (b) and (d) is not applicable to the release of bonds. 25 Pa. Code Sec. 90.309 CRITERIA AND SCHEDULE FOR RELEASE OF BONDS ON POLLUTION ABATEMENT AREAS. (a) The Department will release up to 50% of the amount of bond for the authorized pollution abatement area if the applicant demonstrates and the Department finds the following: (1) The coal refuse disposal activities were conducted on the permit area, including the pollution abatement area, under the requirements of the permit and the authorization, Chapter 86 (relating to surface and underground mining: general) and this chapter except as specifically modified by this subchapter. (2) The operator has satisfactorily completed backfilling, grading, installing the water impermeable cover and drainage control in accordance with the approved reclamation plan. (3) The operator has properly implemented each step of the pollution abatement plan approved and authorized under this subchapter. (4) The operator has not caused degradation of the baseline pollution load at any time during the 6 months prior to the submittal of the request for bond release under this subsection and until the bond release is approved as shown by all groundwater and surface water monitoring conducted by the permittee under Sec. 90.306(a)(1) (relating to operational requirements) or conducted by the Department. (5) The operator has not caused or contributed to surface water pollution or groundwater degradation by reaffecting the pollution abatement area. (b) The Department will release up to an additional 35% of the amount of bond for the authorized pollution abatement area but retain an amount sufficient to cover the cost to the Department of reestablishing vegetation if completed by a third party if the operator demonstrates and the Department finds the following: (1) The operator has replaced the topsoil or material conserved under Sec. 90.97 (relating to topsoil: removal), completed final grading, planting and established revegetation under the approved reclamation plan and achieved the standards of success for revegetation in Sec. 90.305(a)(5) (relating to application approval or denial). (2) The operator has not caused or contributed to groundwater or surface water pollution by reaffecting the pollution abatement area. (3) The operator has achieved the following standards: (i) Achieved the actual improvement of the baseline pollution load described in the approved abatement plan as shown by groundwater and surface water monitoring conducted by the permittee for the time provided in the abatement plan after completion of backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard for success in Sec. 90.305(a)(5). (ii) Achieved the following: (A) At a minimum has not caused degradation of the baseline pollution load as shown by groundwater and surface water monitoring conducted by the operator or the Department for one of the following: (I) For 12 months from the date of initial bond release under subsection (a), if backfilling, final grading, drainage control, placement of impermeable cover, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in Sec. 90.305(a)(5) have been completed. (II) If treatment has been initiated at any time after initial bond release under subsection (a) and Sec. 90.307(e) (relating to treatment of discharges), for 12 months from the date of discontinuance of treatment under Sec. 90.307(d), if backfilling, final grading, drainage control, placement of impermeable cover, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in Sec. 90.305(a)(5) have been completed. (B) Conducted all the measures provided in the approved abatement plan and additional measures specified by the Department in writing at the time of initial bond release under subsection (a) for the area requested for bond release. ( C) Caused aesthetic or other environmental improvements and the elimination of public health and safety problems by engaging in coal refuse disposal activities and reaffecting the pollution abatement area. (D) Stabilized the pollution abatement area. ( c) The Department will release the remaining portion of the amount of bond on the authorized pollution abatement area if the operator demonstrates and the Department finds the following: (1) The operator has successfully completed the approved abatement and reclamation plans, and the pollution abatement area is capable of supporting the postdisposal land use approved under Sec. 90.166 (relating to postdisposal land use). (2) The operator has complied with the permit and the authorization, Chapter 86 and this chapter, except as specifically modified by this subchapter. (3) The operator has not caused degradation of the baseline pollution load from the time of bond release under subsection (b) or, if treatment has been initiated after bond release under subsection (b) in accordance with Sec. 90.307(e) for 5 years from the discontinuance of treatment under Sec. 90.307(d). (4) The applicable liability period has expired under Sec. 86.151 (relating to period of liability).