Each person who conducts surface coal mining activities shall comply with the performance standards and design requirements of this subchapter.

 (a)  Each person who conducts surface mining activities shall identify the operation for the duration of the surface mining activities by posting and maintaining a sign which will be clearly visible at the junction of each haul road and public road. The sign shall be constructed of a durable, weather-resistant material and shall be of a minimum size of 2 feet by 3 feet with a light background and contrasting letters and numbers of a minimum height of 1 1/2 inches that can be easily seen and read. The sign shall show the name, business address and telephone number of the person who conducts the surface mining activities and the identification number of the current permit authorizing surface mining activities.

 (b)  Perimeter, buffer zone and topsoil markers shall:

   (1)  Be posted and maintained during the duration of the surface mining activities to which they pertain.

   (2)  Be clearly visible, readable and uniform throughout the operation.

   (3)  Be made of durable material.

   (4)  Conform to local zoning ordinances and codes.

 (c)  The perimeter of a permit area shall be clearly marked before the beginning of surface mining activities.

 (d)  Stream buffer zones shall be marked along the boundaries of the areas not to be disturbed as required under §  86.102 (relating to areas where mining is prohibited or limited).

 (e)  When topsoil or other vegetation-supporting material is segregated and stockpiled as required under §  87.98 (relating to topsoil: storage), the stockpiled material shall be clearly marked.

 (f)  If blasting is conducted as part of the operation, the person who conducts the surface mining activities shall post and maintain signs and markers as required by §  87.127 (relating to use of explosives: surface blasting requirements).

 (g)  Groundwater and surface water monitoring locations and sampling points used to obtain background information shall be clearly marked and identified. The identification of monitoring locations and sampling points shall correspond with the identification used in the permit application. Markers used to identify monitoring locations shall be made of durable material. The Department may waive marking requirements in cases where the monitoring location or sampling point is obvious or where marking would be objectionable for aesthetic reasons.

   The provisions of this §  87.92 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § §  1406.1—1406.21); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

 (a)  Each exploration hole, other drill or borehole, well or other exposed underground opening (except for holes solely drilled and used for blasting) shall be cased, sealed or otherwise managed as approved by the Department in order to:

   (1)  Prevent acid or other toxic drainage from entering groundwaters or surface waters.

   (2)  Minimize disturbance to the prevailing hydrologic balance.

   (3)  Ensure the safety of people, property, livestock, fish and wildlife and machinery in the permit and adjacent area.

   (4)  Prevent groundwater and surface water from entering underground mine workings.

 (b)  If these openings are uncovered or exposed by surface mining activities within the permit area, they shall be permanently closed unless approved for water monitoring, or otherwise managed in a manner approved by the Department.

 (c)  Use of a drilled hole, borehole or monitoring well as a water well shall meet the provisions of §  87.117 (relating to hydrologic balance: surface water monitoring).

 (d)  Gas and oil wells shall be sealed in accordance with the Oil and Gas Act (58 P. S. § §  601.101—601.605).

 (e)  A solid barrier of undisturbed earth, 125 feet (38.1 meters) in radius shall be maintained around all oil and gas wells, except in the case of one of the following:

   (1)  The well is sealed in accordance with subsection (d).

   (2)  The Department approves, in writing, a lesser distance, if:

     (i)   Access to the well is provided at all times.

     (ii)   The integrity of the well is maintained.

     (iii)   The measures included in the permit to minimize damage, destruction or disruption of services under §  87.173(b) (relating to support facilities and utility installations) are implemented.

   The provisions of this §  87.93 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.93 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206794) to (206795).

 All topsoil and, if necessary, suitable subsoil shall be separately removed, segregated, conserved and redistributed on areas affected by the surface mining activities.

   The provisions of this §  87.96 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  All topsoil shall be removed from the areas to be disturbed in a separate layer prior to drilling, blasting, mining or other surface disturbance. A vegetative cover which would interfere with the removal and use of the topsoil shall be removed prior to topsoil removal.

 (b)  In the event removal of vegetative matter, topsoil or other materials may result in erosion which may cause air or water pollution, the size of the area from which topsoil is removed at any one time shall be limited and other measures shall be taken that the Department may approve or require to control erosion.

 (c)  If topsoil is less than 12 inches (30.48 centimeters), a 12-inch (30.48 centimeters) layer which includes the topsoil and the unconsolidated materials immediately below the topsoil shall be removed, segregated, conserved and replaced as the final surface soil layer. If the topsoil and the unconsolidated material measure less than 12 inches (30.48 centimeters), the topsoil and all unconsolidated material shall be removed, segregated, conserved and replaced as the final surface soil layer.

 (d)  On areas that have been previously affected by mining and which have no available topsoil or subsoil, sufficient material best suited to support vegetation shall be segregated, conserved and redistributed as the final surface layer.

 (e)  The B horizon and portions of the C horizon, or other underlying layers demonstrated to have qualities for comparable root development, shall be segregated and replaced as subsoil if either of these is necessary to ensure soil productivity consistent with the approved postmining land use.

 (f)  When approved by the Department in writing, other materials may be substituted for or used as a supplement to topsoil if the operator demonstrates that the resulting soil medium is equal to or more suitable than topsoil for sustaining vegetation and soil productivity. In making this demonstration, the Department may require chemical and physical analyses of the substituted material and topsoil. These analyses may include determinations of pH, net acidity or alkalinity, phosphorus, potassium, texture class, field site trials or greenhouse tests, or other analyses as required by the Department.

   The provisions of this §  87.97 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206796) and (228241).

 (a)  Topsoil and other materials removed under §  87.97 (relating to topsoil: removal) shall be stockpiled only when it is impractical to promptly redistribute such material on regraded areas.

 (b)  Stockpiled materials shall be selectively placed on a stable area within the permit area and located where the material, unless approved by the Department, will not be moved or otherwise disturbed by the mining activities until required for redistribution on the regraded area.

 (c)  Stockpiled material shall be protected from wind and water erosion, unnecessary compaction and contaminants which lessen the capability of the materials to support vegetation when redistributed. Protective measures shall be accomplished by one of the following:

   (1)  An effective cover of nonnoxious quick-growing annual and perennial plants seeded or planted as soon as weather and planting conditions permit.

   (2)  Other methods demonstrated to and approved by the Department to provide equal protection.

   The provisions of this §  87.98 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Prior to redistribution of topsoil or other material, the regraded land shall be scarified or otherwise treated as required by the Department to eliminate slippage surfaces and to promote root penetration.

 (b)  Topsoil and other materials shall be redistributed in a manner that:

   (1)  Achieves an approximate uniform, stable thickness consistent with the approved postmining land uses, contours and surface water drainage system.

   (2)  Prevents excess compaction of the topsoil and other materials.

   (3)  Protects the topsoil and other materials from wind and water erosion before and after it is seeded and planted.

   The provisions of this §  87.99 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316. Immediately preceding text appears at serial pages (148646) to (148647).

 (a)  Nutrients and soil amendments in the amounts determined by soil tests shall be applied to the surface soil layer so that it supports the approved postmining land use and meets the revegetation requirements of § §  87.147—87.153, 87.155 and 87.156.

 (b)  All soil tests shall be performed using standard methods approved by the Department. Results of the soil test shall be submitted to the Department.

 (c)  Agricultural or granular limestone used for neutralizing soil acidity shall be of sufficient fineness so that a minimum of 95% will pass through a 20 mesh sieve and shall contain sufficient calcium and magnesium to be equivalent to not less than 89% calcium carbonate. An alternative material of equivalent neutralizing effect may be employed.

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

   The provisions of this §  87.100 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Surface mining activities shall be planned and conducted to minimize disturbances to the prevailing hydrologic balance in the permit and adjacent areas and to prevent material damage to the hydrologic balance outside the permit area. The Department may require additional preventative, remedial or monitoring measures to assure that material damage to the hydrologic balance outside the permit area is prevented.

 (b)  Changes in water quality and quantity, the depth of groundwater, and the location of surface water drainage channels shall be minimized so that the approved postmining land use of the permit area is not adversely affected.

 (c)  The treatment requirements and effluent limitations established under §  87.102 (relating to hydrologic balance: effluent standards) may not be violated.

 (d)  Each person who conducts surface mining activities shall conduct the mining and reclamation operation to prevent water pollution and, when necessary, operate and maintain the necessary water treatment facilities until applicable treatment requirements and effluent limitations established under §  87.102 are achieved and maintained.

 (e)  Surface mining activities shall be planned and conducted to prevent to the maximum extent practical the accumulation of water in the pit. Pit water shall be collected and pumped to approved water treatment facilities. Pit water may not be discharged from the surface mining operation by gravity drains.

 (a)  Discharge of water. A person may not allow a discharge of water from an area disturbed by coal mining activities, including areas disturbed by mineral preparation, processing or handling facilities which exceeds the following groups of effluent criteria. The effluent limitations shall be applied under subsection (b).

Group A

	30-day	Daily	Instantaneous
Parameter	Average	Maximum	Maximum
iron (total)	3.0 mg/l	6.0 mg/l	7.0 mg/l
manganese (total)	2.0 mg/l	4.0 mg/l	5.0 mg/l
suspended solids	35 mg/l	70 mg/l	90 mg/l
pH 1		greater than 6.0; less than 9.0
alkalinity greater than acidity 1

   ¹ This parameter is applicable at all times

Group B

	Instantaneous
Parameter	Maximum
iron (total)	7.0 mg/l
settleable solids	0.5 ml/l
pH	greater than 6.0; less than 9.0
alkalinity greater than acidity
Group C
	Instantaneous
Parameter	Maximum
pH	greater than 6.0; less than 9.0
alkalinity greater than acidity

 (b)  Effluent limitations and precipitation exemptions. Effluent limitations and precipitation exemptions are as follows:

   (1)  The discharges specified in this subsection shall comply with the following effluent limitations:

   (2)  To be entitled to the effluent limitations in Group B or Group C, the permittee shall comply with §  87.103 (relating to precipitation event exemption).

 (c)  Exceptions to effluent limitations.

   (1)  The pH of discharges of water shall be maintained between 6.0 and 9.0, except in the following circumstances:

     (i)   When the discharger can show the water is discharged to an acid stream, in which case the pH may be greater than 9.0.

     (ii)   When the discharger affirmatively demonstrates, in writing, to the Department that biological respiration in the wastewater treatment system will cause the discharge to exceed the limits set forth in this section and that exceeding these limits will not result in a violation of applicable water quality standards in Chapter 93 (relating to water quality standards) or of the applicable treatment requirements and effluent limitations to which a discharge is subject under the Clean Water Act (33 U.S.C.A. § §  1251—1376), in which case the Department may grant a variance in writing from the limitation set forth in this section.

     (iii)   When the discharger affirmatively demonstrates to the Department that the wastewater treatment process being used by the discharger requires the pH to be raised above 9.0, that the elevated pH will not cause a safety hazard at the outfall, and that the elevated pH will not result in a violation of applicable water quality standards in Chapter 93 or of the applicable treatment requirements and effluent limitations to which a discharge is subject under the Clean Water Act, the Department may grant a variance from this limitation.

   (2)  When a discharge without chemical or biological treatment has a pH greater than 6.0 and a total iron concentration of less than 10 mg/l, the manganese limitation does not apply.

 (d)  Combined discharges. If a single facility is used for sediment and erosion control facilities and treatment facilities covered by this section, the concentration of each pollutant in the combined discharge may not exceed the most stringent limitations for that pollutant applicable to a component waste stream of the discharge.

 (e)  Postmining pollutional discharges.

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

   (2)  If the discharge continues to exist, after implementation of the abatement measures required under paragraph (1), the discharger shall make provisions for sound future treatment of the discharge to achieve the Group A effluent requirements in subsection (a), including modifications authorized or required under subsection (c) or (f). If the untreated discharge can be adequately treated using a passive treatment system, paragraph (3) applies in lieu of the Group A effluent requirements of subsection (a). Discharges which can be adequately treated using a passive treatment system include, but are not limited to:

     (i)   Discharges with a pH which is always greater than 6.0 and an alkalinity which always exceeds the acidity.

     (ii)   Discharges with an acidity which is always less than 100 milligrams per liter, an iron content which is always less than 10 milligrams per liter, a manganese content which is always less than 18 milligrams per liter and a flow rate which is always less than 3 gallons per minute.

     (iii)   Discharges with a net acidity always less than 300 milligrams per liter which is calculated by subtracting the alkalinity of the discharge from its acidity.

   (3)  A passive treatment system authorized under paragraph (2) shall comply with the following effluent requirements:

     (i)   The system shall reduce the iron concentration by at least 90% or by that percentage necessary to achieve the Group A effluent requirements in subsection (a), whichever percentage is less.

     (ii)   The system shall produce an effluent alkalinity which exceeds effluent acidity.

   (4)  In addition to achieving the effluent requirements of paragraphs (2) and (3), the passive treatment system shall be designed and constructed to accomplish the following:

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

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

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

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

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

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

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

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

   The provisions of this §  87.102 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.102 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended November 14, 1997, effective November 15, 1997, 27 Pa.B. 6041; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (237156) to (237159).

   Evidence

   A composite map of the mine site and surrounding area created from a photocopy of a map submitted by the company as part of its application for a mine discharge permit could not be used to establish a prima facie case of the company’s liability regarding certain discharge areas. To establish liability under section 315(a) of The Clean Streams Law (35 P. S. §  691.315) the Department of Environmental Resources must prove that the discharges emanating from the six discharge areas in question violated the effluent limitations of this regulation and that the company’s mining operations caused the discharges. The Department can prove that the company caused the discharges if it can show that the discharges were either located within the company’s permitted area or hydrogeologically connected to the company’s mining operations. Department of Environmental Resources v. Al Hamilton Contracting Co., 665 A.2d 849 (Pa. Cmwlth. 1995); appeal denied 686 A.2d 1310 (Pa. 1996).

   Intent to Discharge

   It is a valid exercise of police power to require a mine operator to abate discharges flowing from a mine, even if the operator was not at fault or did not generate the pollution. North Cambria Fuel Co. v. Department of Environmental Resources, 621 A.2d 1155 (Pa. Cmwlth. 1993).

   Liability

   Liability of a former mine owner attached when he allowed discharges into a creek tributary although no mining activities were conducted there. Ingram v. Department of Environmental Resources, 595 A.2d 733 (Pa. Cmwlth. 1991); appeal denied 607 A.2d 257 (Pa. 1992); cert. denied 113 S. Ct. 329 (U. S. 1992).

 (a)  To establish the alternative effluent limitations of Group B or C in §  87.102(a) (relating to hydrologic balance: effluent standards), a permittee shall demonstrate to the Department’s satisfaction that, under this section, a precipitation event has occurred.

   (1)  The occurrence of a precipitation event greater than a 10-year, 24-hour precipitation event may be demonstrated by meeting the requirements of subsections (b)—(d) for each discharge that exceeds the effluent limits in §  87.102, unless the permit specifies a more stringent water quality based effluent limitation, in which case no exemption will be available under this section. If the permittee demonstrates to the Department’s satisfaction that a greater than 10-year, 24-hour precipitation event has occurred, the permittee shall meet the effluent limitation enumerated as Group C in §  87.102(a).

   (2)  The occurrence of a precipitation event equal to or less than a 10-year, 24-hour precipitation event may be demonstrated by meeting the requirements of subsections (c) and (d) for each discharge that exceeds the effluent limits specified in §  87.102, unless the permit specifies a more stringent water quality based effluent limitation, in which case no exemption will be available under this section. If the permittee demonstrates to the Department’s satisfaction that a precipitation event equal to or less than a 10-year, 24-hour precipitation event has occurred, the permittee shall meet the effluent limitations enumerated as Group B in §  87.102(a).

 (b)  The 10-year, 24-hour precipitation event for specific areas in this Commonwealth are listed as follows:

 (c)  For the permittee to demonstrate that the event listed in subsection (b) has for the permittee’s mine area been exceeded or that dry weather flow conditions did not exist, the permittee shall do one of the following:

   (1)  Collect 24-hour rainfall information from all official United States Weather Bureau Stations within a 25-mile distance (radius) of the site; by appropriate interpolation of the data collected, calculate the estimated rainfall event for the site. Appropriate interpolation shall be accomplished by the following:

     (i)   Construction of an isohyetal map in accordance with the guidelines established by the Department.

     (ii)   Linear interpolation between the isohytes.

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

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

   (4)  Develop alternative documentation or data concerning the precipitation event. The method or system for developing the documentation or data shall be approved in writing prior to the occurrence of the event for which the exemption is being sought, and shall guarantee the integrity of the information collected.

 (d)  If the discharge from the site exceeds an effluent limit in the permit, the permittee shall notify the Department within 5 days of the occurrence of the event that he is applying for an exemption from that limit and shall within 30 days thereafter provide to the Department:

   (1)  The data required by subsection (c).

   (2)  A showing that the facility from which the discharge occurred was designed, maintained and operated during and prior to the event to accommodate or treat a 10-year, 24-hour precipitation event.

 (e)  The permittee will not be entitled to claim a greater than 10-year, 24-hour precipitation event storm exemption unless the permittee has fully complied with the requirements of subsections (c) and (d).

 (f)  Nothing in this section shall be construed as authorizing the Department to grant an exemption for a discharge which the Department finds may have caused or contributed to a violation of a general or specific water quality criteria in Chapter 93 (relating to water quality standards).

   The provisions of this §  87.103 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316. Immediately preceding text appears at serial pages (148651) to (148654).

 (a)  Flow from perennial and intermittent streams within the permit area may be diverted if the diversions:

   (1)  Will not adversely affect, during and after mining, the water quantity and quality of the stream.

   (2)  Comply with other requirements of this chapter and Chapter 105 (relating to dam safety and waterway management).

   (3)  Comply with local, State and Federal statutes and regulations.

 (b)  When streamflow diversion is approved, the stream channel diversion shall be designed, constructed and removed in accordance with the following:

   (1)  The longitudinal profile of the stream, the channel and the flood plain shall be designed and constructed to remain stable and to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow or to runoff outside the permit area. These contributions may not be in excess of requirements of State or Federal law. Erosion control structures, such as channel lining structures, retention basins and artificial channel roughness structures, shall be approved for permanent diversions only when they are stable and will require infrequent maintenance.

   (2)  The combination of channel, bank and floodplain configurations shall be adequate to prevent a flooding potential greater than that created by the natural conditions of the existing channel. However, the capacity of the channel itself shall be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream from the diversion.

   (3)  The design and construction of stream channel diversions of perennial and intermittent streams shall be certified by a qualified registered professional engineer as meeting the performance standards of this part.

 (c)  When no longer needed to achieve the purpose for which they are authorized, all temporary stream channel diversions shall be removed and the affected land regraded and revegetated, in accordance with § §  87.99, 87.100, 87.141, 87.142, 87.144, 87.145, 87.147—87.153, 87.155 and 87.156. At the time diversions are removed, treatment facilities previously protected by the diversion shall be modified or moved to prevent damage or failure of the facilities. This requirement does not relieve the person who conducts the surface mining activities from maintenance of a water treatment facility otherwise required under this chapter, and the erosion and sedimentation control requirements of §  87.106 (relating to hydrologic balance: sediment control measures).

 (d)  When permanent diversions are constructed or stream channels are restored after temporary diversion, the operator shall:

   (1)  Restore or maintain, and enhance where practicable, natural riparian vegetation on the banks of the stream.

   (2)  Restore the horizontal alignment of the stream to a condition compatible with the protected water use of Chapter 93 (relating to water quality standards).

   (3)  Restore the stream to a longitudinal profile and cross section, including aquatic habitats, that approximate premining stream channel characteristics.

   The provisions of this §  87.104 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316. Immediately preceding text appears at serial pages (148654) to (148655).

 (a)  Surface water and shallow groundwater flow from undisturbed areas which will drain into the affected area shall be intercepted and diverted away from the disturbed area by means of diversion.

 (b)  Diversions shall be designed, constructed and maintained using current engineering practices to pass safely the peak runoff from a precipitation event with a 2-year recurrence interval for temporary diversions and 10-year recurrence interval for permanent diversion. If necessary to protect public health and safety or prevent pollution, a larger event shall be used.

 (c)  All topsoil shall be removed, stored on a stable site, and protected against erosion and compaction until restoration of the diversion.

 (d)  Diversion shall be vegetated or otherwise stabilized to prevent erosion or contributions of sediment to stream or runoff outside the affected area. Asphalt, concrete or other similar lining shall only be used when approved by the Department. Riprap shall be nondegradable, nonacid-forming or toxic-forming rock that will not slake and will be free of coal, clay or shale.

 (e)  A diversion may not be located so as to increase the potential for landslides or other offsite damage.

 (f)  Excess material shall be placed in the backfilling, or at an excess spoil disposal area.

 (g)  When no longer needed, the diversion shall be regraded to blend with the natural contours and drainage pattern, and revegetated in accordance with §  87.147 (relating to revegetation: general requirements).

   The provisions of this §  87.105 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 Appropriate sediment control measures shall be designed, constructed and maintained using the best technology currently available to:

   (1)  Prevent to the extent possible contributions of sediment to streamflow or to runoff outside the affected area.

   (2)  Meet the treatment requirements and effluent limitations of §  87.102 (relating to hydrologic balance: effluent standards).

   (3)  Minimize erosion to the extent possible.

   (4)  Meet the requirements of Chapter 102 (relating to erosion and sediment control).

   The provisions of this §  87.106 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial page (206808).

 (a)  At a minimum, facilities and measures for treating discharges from disturbed areas shall be designed, constructed and maintained to treat the runoff from a 10-year, 24-hour precipitation event and any groundwater contribution.

 (b)  Facilities and measures for treating any discharges shall be based on good engineering design and shall include automatic neutralization processes. The Department may approve a manual neutralization system if the Department finds that:

   (1)  Small and infrequent treatment is needed to meet effluent limitations.

   (2)  Timely and consistent treatment is ensured.

 (c)  The design, construction and maintenance of a treatment facility shall not relieve an operator of his responsibility for complying with effluent standards as provided for in §  87.102 (relating to hydrologic balance: effluent standards).

   The provisions of this §  87.107 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  All surface drainage from the disturbed area, including areas which have been graded, seeded or planted, shall be passed through a sedimentation pond or a series of sedimentation ponds before leaving the permit area. The Department may waive the required use of sedimentation ponds when the person who conducts surface mining activities demonstrates to the satisfaction of the Department that sediment ponds are not necessary to meet the effluent limitation under §  87.102 (relating to hydrologic balance: effluent standards).

 (b)  Sedimentation ponds shall be constructed in accordance with this section and §  87.112 (relating to hydrologic balance: dams, ponds, embankments and impoundments—design, construction and maintenance) in appropriate locations before any disturbance of the area to be drained into the pond. Sedimentation ponds may not be located in a perennial stream and the Department will not authorize the location or placement of a sedimentation pond in an intermittent stream unless the requirements of Chapters 93, 102 and 105 and § §  86.37 and 86.102(5) are met and the pond is approved as part of the postmining land use in accordance with § §  87.111 and 87.159 (relating to hydrologic balance: impoundments; and postmining land use), or will be removed during times of the year that will not cause pollution.

 (c)  Sedimentation ponds shall be maintained until the disturbed area has been stabilized and revegetated and removal of the ponds is approved by the Department. The ponds may not be removed sooner than 2 years after the last augmented seeding, unless the Department finds that the disturbed area has been sufficiently revegetated and stabilized.

 (d)  At a minimum, sedimentation ponds shall meet the requirements of Chapter 102 (relating to erosion control).

 (e)  The pond shall include a nonclogging dewatering device approved by the Department that will permit thedraining of the water from inflow. The dewatering device may not be located at a lower elevation than the maximum elevation of the sedimentation storage volume.

 (f)  The ponds shall be designed, constructed and maintained to prevent short circuiting to the extent possible.

 (g)  The design, construction and maintenance of a sediment pond in accordance with this section does not relieve the person who conducts surface mining activities of the person’s responsibility for complying with the applicable treatment requirements and effluent limitations established under §  87.102.

 (h)  At a minimum, the pond shall be capable of treating the runoff resulting from a 10-year, 24-hour precipitation event.

 (i)  When the sedimentation pond is to be removed, the affected land shall be regraded and revegetated in accordance with § §  87.147—87.153, 87.155 and 87.156.

   The provisions of this §  87.108 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.108 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial pages (198969) to (198970).

 Discharge from dams, ponds, embankments, impoundments and diversions shall be controlled by energy dissipators, riprap channels and other devices when necessary to reduce erosion, to prevent deepening or enlargement of stream channels and to minimize disturbance of the hydrologic balance. Discharge structures shall be designed according to standard engineering design procedures.

 (a)  Drainage from acid-forming and toxic-forming spoil into groundwater and surface water shall be avoided by the following:

   (1)  Identifying, burying and treating, when necessary, spoil that may adversely affect water quality if not treated or buried.

   (2)  Preventing water from coming into contact with acid-forming and toxic-forming spoil in accordance with §  87.145 (relating to backfilling and grading: covering coal and acid-forming and toxic-forming materials) and other measures as required by the Department.

 (b)  Temporary storage of the spoil may be approved by the Department upon a finding that storage will not result in any risk of water pollution or other environmental damage. Storage shall be limited to the period until burial or treatment first becomes feasible. Acid-forming or toxic-forming spoil to be stored shall be placed on impermeable material and protected from erosion and contact with surface water. Any discharge shall be collected and treated to conform to §  87.102 (relating to hydrologic balance: effluent standards).

   The provisions of this §  87.110 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 Permanent impoundments are prohibited unless authorized by the Department upon the basis of the following demonstration:

   (1)  The quality of the impounded water shall be suitable on a permanent basis for its intended use, and discharge of water from the impoundment will not degrade the quality of receiving waters to less than the water quality standards established under §  87.102 (relating to hydrologic balance: effluent standards).

   (2)  The level of water shall be sufficiently stable to support the intended use.

   (3)  Adequate safety and access to the impounded water shall be provided for proposed water users.

   (4)  Water impoundments shall not result in diminution of the quality or quantity of water used by adjacent or surrounding landowners for agricultural, industrial, recreational or domestic uses.

   (5)  The size of the impoundment is adequate for its intended purposes.

   (6)  The impoundment will be suitable for the approved postmining land use.

   The provisions of this §  87.111 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Dams, ponds, embankments and impoundments that meet the following criteria shall be designed, constructed and maintained in accordance with Chapter 105 (relating to dam safety and waterway management):

   (1)  Dams located on a natural or artificial water course when one of the following applies:

     (i)   The contributary drainage area exceeds 100 acres.

     (ii)   The greatest depth of water at a maximum storage elevation exceeds 15 feet.

     (iii)   The impounding capacity at maximum storage elevation exceeds 50 acre-feet.

   (2)  Dams used for the storage of water not located on a watercourse and which have no contributory drainage, when the greatest depth of water at a maximum storage elevation exceeds 15 feet and the impounding capacity at maximum storage elevation exceeds 50 acre-feet.

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

   (1)  Each impoundment that requires a permit under Chapter 105 or when impoundments meet or exceed the MSHA size classification or other criteria of 30 CFR 77.216(a) (relating to water sediment or slurry impoundment and impounding structures; general) shall be designed and certified to the Department by a qualified registered professional engineer with assistance, as necessary, from experts in related fields such as geology, land surveying and landscape architecture. Each impoundment that does not require a permit under Chapter 105 or when impoundments do not meet or exceed the MSHA size classification or other criteria of 30 CFR 77.216(a) shall be designed and certified to the Department by a qualified registered professional engineer or qualified registered professional land surveyor. Each impoundment shall be certified that the impoundment has been constructed and is being maintained as designed in accordance with the approved plan and applicable performance standards.

   (2)  The entire embankment, including the surrounding areas disturbed by construction, shall be stabilized with respect to erosion by a vegetative cover or other means immediately after the embankment is completed. The active upstream face of the embankment where water will be impounded shall be riprapped or otherwise stabilized. Areas in which the vegetation is not successful, or where rills and gullies develop, shall be repaired and revegetated.

   (3)  Plans for enlargement, reduction in size, reconstruction or other modification that may affect the stability or operation of dams or impoundments shall be submitted to the Department and shall comply with this section. Except when a modification is required to eliminate an emergency condition constituting a hazard to public health, safety or the environment, the Department will approve the plans before modification begins.

 (c)  If the embankment is more than 20 feet in height as measured from the upstream toe of embankment to the crest of the emergency spillway or has a storage volume of 20 acre-feet or more, or is located where failure could cause loss of life or serious property damage, it shall:

   (1)  Be stable under all probable conditions of operation and be designed and constructed to achieve a static safety factor of 1.5 or other higher static safety factor required by the Department.

   (2)  Have an appropriate combination of principal and emergency spillways to discharge safely the runoff from a 100-year, 24-hour precipitation event or a larger event specified and required by the Department.

   (3)  Have a foundation investigation, as well as any necessary laboratory testing of foundation material to determine the design requirements for foundation stability.

 (d)  Each impoundment that requires a permit under Chapter 105 or when impoundments meet or exceed the MSHA size classification or other criteria of 30 CFR 77.216(a) shall be inspected during construction, and certified after construction and annually thereafter by a qualified registered professional engineer until removal of the structure or release of the performance bond. An impoundment that does not require a permit under Chapter 105 or when impoundments do not meet or exceed the MSHA size classification or other criteria of 30 CFR 77.216(a) shall be inspected during construction, and certified after construction and annually thereafter, by a qualified registered professional engineer or qualified registered professional land surveyor until removal of the structure or release of the performance bond. The professional engineer or professional land surveyor making the inspections and certifications shall be experienced in the construction of impoundments. Certification reports shall include monitoring and instrumentation results and a statement regarding the condition of impoundment.

 (e)  Each impoundment shall be examined by a qualified person designated by the operator at intervals not exceeding 7 days, for structural weakness, erosion and other hazardous conditions. Impoundments with an embankment less than 20 feet in height as measured from the upstream toe of the embankment to the crest of the emergency spillway or which have a storage volume of less than 20 acre-feet shall be inspected once every 3 months unless otherwise required by the Department. If an examination or inspection discloses that a potential hazard exists, the person who examined the impoundment shall promptly inform the Department of the finding and provide a remedial action plan to protect the public. If adequate procedures cannot be formulated or implemented, the Department shall be notified immediately. The Department will then notify the appropriate agencies that other emergency procedures are required to protect the public. The permittee shall make and retain records of the inspection, including records of actions taken to correct deficiencies found in the inspection. Copies of the records shall be provided to the Department on request.

 (f)  Impoundments subject to 30 CFR 77.216-1 and 77.216-2 (relating to water, sediment or slurry impoundments and impounding structures; identification; and water, sediment, or slurry impoundments and impounding structures; minimum plan requirements; changes or modifications; certification) shall have duplicate plans submitted to the District Manager of MSHA and to the Department. The Department may consider MSHA’s review for impoundments. However, the Department will review impoundments under the requirements of subsection (a).

   The provisions of this §  87.112 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.112 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial pages (198972) to (198974).

 In addition to the requirements of §  87.112 (relating to hydrologic balance: dams, ponds, embankments and impoundments—design, construction and maintenance), each dam and embankment constructed of coal processing waste or intended to impound coal processing waste shall meet the requirements of §  90.112 (relating to hydrologic balance: dams, ponds, embankments and impoundments—design, construction and maintenance).

 (a)  Surface mining activities, except for coal processing waste and underground development waste disposal areas and fills, shall be conducted to restore the recharge capacity of the area of the operation to approximate premining conditions.

 (b)  The recharge capacity shall be restored to a condition which:

   (1)  Supports the approved postmining land use.

   (2)  Minimizes disturbances to the prevailing hydrologic balance in the permit and adjacent areas.

   (3)  Provides a rate of recharge that approximates the premining recharge rate.

   The provisions of this §  87.115 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Groundwater levels, infiltration rates, subsurface flow and storage characteristics and the quality of groundwater shall be monitored in a manner approved by the Department to determine the effects of surface mining activities on the recharge capacity of reclaimed lands and on the quantity and quality of groundwater in the permit and adjacent areas.

 (b)  When surface mining activities may affect the groundwater systems which serve as aquifers which significantly ensure the hydrologic balance of water use on or off the permit area, groundwater levels and groundwater quality shall be monitored. Monitoring shall include measurements from a sufficient number of wells and chemical analyses of water from aquifers which adequately reflect changes in groundwater quantity and quality resulting from those activities. Monitoring shall be adequate to plan for modification of surface mining activities, if necessary, to minimize disturbance of the prevailing hydrologic balance. At a minimum, total dissolved solids or specific conductance corrected to 25°C, pH, acidity, alkalinity, total iron, total manganese, sulfates and water levels shall be monitored and reported to the Department at least every 3 months for each monitoring location.

 (c)  The person who conducts surface mining activities shall conduct additional hydrologic tests as specified and approved by the Department, including but not limited to, drilling, infiltration tests, aquifer tests, chemical and mineralogical analyses of overburden and spoil and shall submit the results to the Department to demonstrate compliance with this section and §  87.115 (relating to hydrologic balance: protection of groundwater recharge capacity).

 (d)  The Department may require the operator to conduct monitoring and reporting more frequently than every 3 months, and to monitor additional parameters beyond the minimum specified in this section.

   The provisions of this §  87.116 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.116 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial pages (198975).

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

 (b)  The Department may require the operator to conduct monitoring and reporting more frequently than every 3 months, and to monitor additional parameters beyond the minimum specified in this section.

   The provisions of this §  87.117 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.117 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial page (198976).

 (a)  Water supply replacement obligations. The operator of any mine or a person engaged in government-financed reclamation who affects a water supply by contamination, pollution, diminution or interruption shall restore or replace the affected water supply with an alternate source, adequate in water quantity and water quality, for the purpose served by the water supply.

   (1)  To be adequate, the restored or replacement water supply, at a minimum, shall:

     (i)   Be as reliable as the previous water supply.

     (ii)   Be as permanent as the previous water supply.

     (iii)   Not require excessive maintenance.

     (iv)   Provide the owner and the user with as much control and accessibility as exercised over the previous water supply. The use of a public water supply as a replacement water supply provides the owner and the user adequate control and accessibility.

     (v)   Not result in more than a de minimis cost increase to operate and maintain.

   (2)  If the operating and maintenance costs of the restored or replacement water supply are more than a de minimis cost increase, the operator shall provide for the permanent payment of the increased operating and maintenance costs of the restored or replacement water supply.

   (3)  The requirement contained in this subsection to restore or replace an affected water supply or an individual requirement of paragraphs (1) and (2) may be waived. The waiver shall be in writing on a form prepared by the Department. Everyone who possesses an ownership interest in the water supply shall sign the waiver. The form shall be recorded at the office of the recorder of deeds in the county in which the water supply is situated and a notarized copy of the form shall be provided to the Department.

 (b)  Presumption of liability for pollution.

   (1)  It shall be presumed, as a matter of law, that a surface mine operator or mine owner is responsible without proof of fault, negligence or causation for all pollution, except bacteriological contamination, and diminution of public or private water supplies within 1,000 linear feet (304.80 meters) of the boundaries of the areas bonded and affected by coal mining operations, areas of overburden removal and storage and support areas except for haul and access roads.

   (2)  If surface mining activities are conducted on areas which are not permitted or bonded, it shall be presumed, as a matter of law, that the surface mine operator or mine owner is responsible without proof of fault, negligence or causation for all pollution, except bacteriological contamination, and diminution of public or private water supplies within 1,000 linear feet (304.80 meters) of the land affected by the surface mining activities.

 (c)  Defenses to presumption of liability. There are only five defenses to the presumption of liability provided in subsection (b). For any of the five defenses to apply, the mine operator or mine owner shall affirmatively prove by a preponderance of evidence that one or more of the following conditions exists:

   (1)  The landowner or water supply company refused to allow the surface mine operator or mine owner access to conduct a water supply survey prior to commencing surface mining activities.

   (2)  The water supply is not within 1,000 linear feet (304.80 meters) of:

     (i)   The boundaries of areas bonded and affected by coal mining operations, areas of overburden removal and storage and areas used for support but not including haul and access roads.

     (ii)   The boundaries of areas affected by surface mining activities in areas which are not bonded.

   (3)  The pollution or diminutation existed prior to the surface mining activities as evidenced by a water supply survey conducted prior to commencing surface mining activities and as documented in the approved surface mine permit application submitted to the Department prior to permit issuance.

   (4)  The pollution or diminution occurred as a result of some cause other than the surface mining activities.

   (5)  The landowner, water supply user or water supply company refused to allow the surface mine operator or mine owner access to determine the cause of pollution or diminution or to replace or restore the water supply.

 (d)  Notification to Department. The surface mine operator or mine owner shall notify the Department and provide all information which supports a defense to the presumption of liability when one or more of the five defenses to the presumption of liability provided in subsection (c) are met. If a surface mine operator’s or mine owner’s defense to the presumption of liability is based on the conditions of subsection (c)(1), the operator or owner shall submit evidence to the Department demonstrating that the landowner or water supply company was notified by certified mail or personal service that the refusal of access to conduct a water supply survey could be used to rebut a presumption of liability.

 (e)  Immediate replacement of water supply. If the Department finds that immediate replacement of an affected water supply used for potable or domestic purposes is required to protect public health or safety and the surface mine operator or mine owner has failed to comply with an order issued under section 4.2(f) of SMCRA (52 P. S. §  1396.4b(f)), the Department may use moneys from the Surface Mining Conservation and Reclamation Fund to restore or replace the affected water supply.

 (f)  Department cost of recovery. The Department will recover the costs of restoration or replacement, the costs of temporary water supply and costs incurred for design and construction of facilities from the responsible surface mine operator or mine owner. Costs recovered will be deposited in the Surface Mining Conservation and Reclamation Fund.

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

 (h)  Other remedies. Nothing in this section prevents a landowner, water supply user or water supply company who claims pollution or diminution of a water supply from pursuing any other remedy that may be provided for in law or in equity.

 (i)  Issuance of new permits. A Department order issued under this section which is appealed will not be used to block issuance of new permits or the release of bonds when a stage of reclamation work is completed.

 (j)  Department authority. Nothing in this section limits the Departments authority under section 4.2(f)(l) of SMCRA.

 (k)  Exception. A surface mining operation conducted under a surface mining permit issued by the Department before February 16, 1993, is not subject to subsections (b)—(i), but is subject to subsections (a) and (j).

   The provisions of this §  87.119 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2215. Immediately preceding text appears at serial page (206817).

   Costs

   The Environmental Hearing Board properly found that the operator of a surface coal mine was required to permanently provide compensation for the increased maintenance costs of an adjacent property owner’s well water supply and establish an individual trust or escrow account for such future costs. Carlson Mining Co., v. Department of Environmental Resources, 639 A.2d 1332 (Pa. Cmwlth. 1994); appeal denied by 649 A.2d 676 (Pa. 1994).

 Surface water and groundwater from surface mining activities may not be diverted or otherwise discharged into underground mine workings except in accordance with Chapter 89 (relating to underground mining of coal and coal preparation facilities).

 At the completion of surface mining activities, the person who conducts the surface mining activities shall renovate all permanent sedimentation ponds, diversions, impoundments and treatment facilities to meet criteria specified in the detailed design plan for the permanent structures and impoundments, unless the permittee demonstrates that the facility or structure meets the requirements of this subchapter.

 Surface mining activities shall be conducted so as to maximize the utilization and conservation of the coal being recovered so that reaffecting the land in the future through surface mining can be minimized.

 (a)  A person who conducts surface mining activities shall comply with this chapter and applicable State and Federal laws in the use of explosives.

 (b)  Blasts that use more than 5 pounds of explosive or blasting agents shall be conducted according to the schedule required under §  87.126 (relating to use of explosives: public notice of blasting schedule).

 (c)  Blasting operations shall be conducted by or under the supervision of a competent blaster licensed and operating in compliance with Chapter 210 (relating to blasters’ licenses).

 (d)  Blasting operations shall be conducted in compliance with Chapter 211 (relating to storage, handling and use of explosives).

 (e)  A person responsible for blasting operations at a blasting site shall be familiar with the blasting plan and site-specific performance standards.

   The provisions of this §  87.124 amended under section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b); section 11 of the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. §  3311); and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-17 and 510-20).

   The provisions of this §  87.124 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended August 8, 2008, effective August 9, 2008, 38 Pa.B. 4355. Immediately preceding text appears at serial page (281201).

 (a)  At least 30 days before initiation of blasting, the operator shall notify, in writing, residents or owners of dwellings or other structures located within 1/2 mile of the permit area where blasting will occur of the right to a preblasting survey, the right to receive a copy of the preblasting survey and how to request a preblasting survey. On the request to the Department or operator by a resident or owner of a dwelling or structure that is located within 1/2 mile of any part of the permit area where blasting will occur, the persons who conduct the surface mining activities shall promptly conduct a preblasting survey of the dwelling or structure. If a dwelling or structure is renovated or added to subsequent to a preblasting survey, then, upon request by the resident or owner to the Department or operator, a survey of the additions and renovations shall be performed by the operator under this section. The operator shall provide the Department with a copy of the request.

 (b)  The survey shall determine the condition of the dwelling or structure and document any preblasting damage and other physical factors that could reasonably be affected by the blasting. Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems shall be limited to surface condition and readily available data. Preblasting conditions of wells and other water systems used for human, animal or agricultural purposes shall be ascertained to the extent possible regarding the quantity and quality of the water.

 (c)  A written report of the survey shall be prepared and signed by the person who conducted the survey. The report may include recommendations of any special conditions or proposed adjustments to the blasting procedure which should be incorporated into the blasting plan to prevent damage. Copies of the report shall be promptly provided to the person requesting the survey and to the Department. If the person requesting the survey disagrees with the results of the survey, the person may notify, in writing, both the permittee and the Department of the specific areas of disagreement.

 (d)  A preblasting survey requested more than 10 days before planned initiation of blasting shall be completed by the operator before the initiation of blasting.

   The provisions of this §  87.125 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.125 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial pages (198978) to (198979).

 (a)  Blasting schedule publication.

 (1) Each person who conducts surface mining activities shall publish a blasting schedule in a newspaper of general circulation in the locality of the proposed site, at least 10 days, but not more than 30 days, before beginning a blasting program in which blasts that use more than 5 pounds of explosives or blasting agents are detonated.

   (2)  Copies of the schedule shall be distributed by mail to local governments and public utilities and by mail or delivered to each resident within 1/2 mile of the blasting area. Copies sent to residents shall be accompanied by information advising the owner or resident how to request a preblasting survey.

   (3)  The person who conducts the surface mining activities shall republish and redistribute the schedule by mail at least every 12 months.

 (b)  Blasting schedule contents.

   (1)  A blasting schedule may not be so general as to cover the entire permit area or all working hours, but must identify as accurately as possible the location of the blasting sites and the time periods when blasting will occur.

   (2)  The blasting schedule must contain at a minimum the following:

     (i)   Identification of the specific areas in which blasting will take place. Each specific blasting area described must be reasonably compact and not larger than 300 acres (121.4 hectares).

     (ii)   Dates and time periods when explosives are to be detonated.

     (iii)   Methods to be used to control access to the blasting area.

     (iv)   Types of audible warnings and all-clear signals to be used before and after blasting.

     (v)   A description of possible emergency situations that might prevent blasting at times announced in the blasting schedule, such as rain, lightning, other atmospheric conditions or operator or public safety which may require unscheduled detonation.

 (c)  Public notice of changes to blasting schedules.

   (1)  The person who conducts the surface mining activities shall prepare a revised blasting schedule before blasting in areas or at times not in a previous schedule.

   (2)  The blasting schedule shall be revised, published and distributed in accordance with this section. Advice on requesting a preblast survey need not be provided to those parties advised in the original distribution under subsection (a)(2).

   The provisions of this §  87.126 amended under section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b); section 11 of the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. §  3311); and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-17 and 510-20).

   The provisions of this §  87.126 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227; amended August 8, 2008, effective August 9, 2008, 38 Pa.B. 4355. Immediately preceding text appears at serial pages (281202) and (244095).

 (a)  Blasting shall be conducted between sunrise and sunset, at times announced in the blasting schedule, except that mine opening blasting conducted after the second blast, for that mine opening, may be conducted at any time of day or night as necessary to maintain stability of the mine opening to protect the health and safety of mineworkers. For mine opening blasting conducted after the second blast, for that mine opening, the Department may approve ground vibration and airblast limits at a dwelling, public building, school, church or commercial or institutional structure, that are less stringent than those specified in subsection (e) or (m) if consented to, in writing, by the structure owner and lessee, if leased to another party.

 (b)  The Department may specify more restrictive time periods, airblast or ground vibration limits, based on public requests or other relevant information, according to the need to adequately protect the public from the adverse affects of ground vibration, airblast or safety hazards.

 (c)  Warning and all-clear signals shall be different in pattern, audible with a range of 1/2 mile from the point of the blast, sounded before and after each blast. Persons who work within the 1/2 mile of the blasting area shall be notified of the meaning of the signals through appropriate instructions. These instructions shall be periodically delivered or otherwise communicated in a manner which can be reasonably expected to inform these persons of the meaning of the signals. A person who conducts blasting incident to surface mining activities shall:

   (1)  When a blast is about to be fired, give sufficient warning that persons approaching the blast area may be warned of the danger and be given ample time to retreat a safe distance from the blast area.

   (2)  When electric blasting operations are located near highways or other public ways, erect signs at least 500 feet from the blast area reading: BLAST AREA-SHUT OFF ALL TWO-WAY RADIOS. The letters of these signs shall be at least 4 inches in height on a contrasting background.

   (3)  Place at the entrances to the permit area from public roads or highways conspicuous signs which state ‘‘Warning. Explosives in Use’’ which clearly explain the blast warning and all clear signals that are in use and which explain the marking of blasting areas and charged holes within the permit area.

 (d)  Access to an area possibly subject to flyrock from blasting shall be controlled to protect the public and livestock. Access to the area shall be controlled to prevent the presence of livestock or unauthorized personnel during blasting and until an authorized representative of the person who conducts the surface mining activities has reasonably determined:

   (1)  That no unusual circumstances, such as imminent slides or undetonated charges, exist.

   (2)  That access to and travel in or through the area can be safely resumed.

 (e)  Airblast shall be controlled so that it does not exceed the level specified in this subsection at a dwelling, public building, school, church or commercial or institutional structure, unless the structure is located on the permit area when the structure owner and lessee, if leased to another party, have each signed a waiver relieving the operator from meeting the airblast limitations of this subsection.

   (1)  The maximum allowable airblast level is 133 dBL.

   (2)  If necessary to prevent damage, the Department will specify lower maximum allowable airblast levels than those of this subsection for use in the vicinity of a specific blasting operation. The measuring systems used shall have a flat response of at least 200 Hz at the upper end. The Type 1 sound level meter shall use the slow response C- weighted network and shall meet American National Standards Institute (ANSI) S1.4-1971 specifications. The ANSI S1.4-1971 is incorporated by reference.

   (3)  The operator shall conduct periodic monitoring to ensure compliance with the airblast standards. The Department may require an airblast measurement of blasts, and may specify the location of the measurements.

 (f)  Requirements for blasting are as follows:

   (1)  Public highways and entrances to the operation shall be barricaded and guarded by the operator if the highways and entrances to the operations are located within 800 feet of a point where a blast is about to be fired. The operator may use an alternative measure to this requirement if the operator demonstrates, to the Department’s satisfaction, that the alternative measure is at least as effective at protecting persons and property from the adverse affects of a blast. Alternative measures are measures such as:

     (i)   Slowing or stopping traffic in coordination with appropriate State or local authorities, including local police.

     (ii)   Using mats to suppress fly rock.

     (iii)   Designing the blast to prevent damage or injury to persons and property located on the public highways or at the operation’s entrances by using design elements such as:

       (A)   Orienting the blast so that the direction of relief is away from public highways or operation entrances.

       (B)   Adjusting blast design parameters including:

         (I)   The diameter of holes.

         (II)   The number of rows.

         (III)   The number of holes.

         (IV)   The amount and type of explosive.

         (V)   The burden and spacing.

         (VI)   The amount and type of stemming.

         (VII)   The powder factor.

   (2)  When a blast is about to be fired within 200 feet of a pipeline, the operator shall exercise necessary caution as needed for the protection of the pipeline. The operator shall notify the owner of the line of the operator’s intention to blast, giving a description of the precautionary measures that will be taken.

   (3)  When blasting is to be done within 1,000 feet of schools or public buildings, it shall be done only during the time approved by the Department. Prior to the blasts, the operator or foreman in charge of the blasting operation shall, within 24 hours prior to the blast, notify persons within this area that a blast is to be detonated. Approval of the method of notification shall be obtained from the Department prior to commencing blasting.

   (4)  Blasting may not be done within the confines of an area of 300 feet of an occupied dwelling unless prior written consent of the property owner has been obtained.

   (5)  Flyrock, including blasted material traveling along the ground, may not be cast from the blasting vicinity more than one-half the distance to the nearest dwelling or other occupied structure and in no case beyond the permit boundary, or beyond the area or regulated access required under subsection (d).

   (6)  Notwithstanding other provisions in this part, no blasting, whether of overburden or of coal, may be done or performed in a manner and under circumstances or conditions to eject debris into the air, to constitute a hazard or danger or do harm or damage to persons or property in the area of the blasting.

 (g)  Blasting shall be conducted to prevent injury to persons, damage to public or private property outside the permit area, adverse impacts on an underground-mine, or availability of groundwaters or surface waters; and shall be prohibited in cases when the effect of the blasting is liable to change the course or channel of a stream.

 (h)  In blasting operations, except as otherwise authorized in this section, the maximum peak particle velocity may not exceed the values approved in the blast plan required by §  87.64 (relating to blasting plan) at the location of a dwelling, public building, school, church, commercial or institutional building or other structure. Peak particle velocities shall be recorded in three mutually perpendicular directions. The maximum peak particle velocity shall be the largest of any of three measurements. The Department may reduce the maximum peak particle velocity allowed, if it determines that a lower standard is required because of density of population or land use, age or type of structure, geology or hydrology of the area, frequency of the vibration or other factors.

 (i)  The maximum peak particle velocity limitation of subsection (h) does not apply at structures located on the permit area when the owner and lessee, if leased to another party, of the structure have each signed a waiver releasing the vibration limit. The waiver shall be clear, knowing and specific. This waiver shall be submitted to the Department prior to the firing of a blast which exceeds the current vibration limit, as stated in this section or the blast plan.

 (j)  When seismographs are not used to monitor peak particle velocity, the maximum weight of explosives to be detonated within an 8 millisecond period may be determined by the formula W = (D/Ds)² where W equals the maximum weight of explosives, in pounds, that can be detonated in any 8 millisecond period or greater, D equals the distance, in feet, from the blast to the nearest dwelling, school, church, commercial or institutional building and Ds equals the scaled distance factor . The development of a modified scaled-distance factor may be authorized by the Department on receipt of a written request by the operator, supported by seismographic records of blasting at the minesite. The modified scaled- distance factor shall be determined so that the particle velocity of the predicted ground vibration will not exceed the prescribed maximum allowable peak particle velocity of subsection (n) at a 95% confidence level.

 (k)  When a seismograph is used to monitor the peak particle velocity, a seismograph record shall be obtained for each blast and within 30 calendar days become part of the blast record required in §  87.129 (relating to use of explosives: record of blasting operations). The seismograph record shall be analyzed by an independent party qualified in the analysis of seismic data.

 (l)  The Department may require a seismograph record of blasts and may specify the location at which the measurements are taken.

 (m)  The maximum ground vibration may not exceed the following limits at the location of a dwelling, public building, school, church or community or institutional building:

 ¹Ground vibration shall be measured as the particle velocity. Particle velocity shall be recorded in three mutually perpendicular directions. The maximum allowable peak particle velocity shall apply to each of the three measurements.

 ²Applicable to the scaled-distance equation of subsection (j).

 (n)  The Department will not permit blasting to be conducted until:

   (1)  Blasting plans, under §  87.64 (relating to blasting plan), are approved by the Department and the approved blasting plan is returned to the operator.

   (2)  Notification of completion of requested preblasting surveys, under §  87.125 (relating to use of explosives: preblasting survey), is received by the Department.

   (3)  Copy of the proof of publication of each blasting schedule, under §  87.126 (relating to use of explosives; public notice of blasting schedule), is received by the Department.

 (o)  An operator may use Figure 1, the blast level chart, to determine the maximum allowable ground vibration. If Figure 1 is used, the operator shall provide a seismograph record including both the particle velocity time-history (wave form) and the particle velocity and vibration frequency levels for each blast.

   (1)  The vibration frequency shall be displayed and analyzed over the frequency range of 1 Hz through 100 Hz.

   (2)  The permittee shall obtain Department approval of the analytical method used to determine the predominant frequency before applying this alternative criterion.

   The provisions of this §  87.127 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20); amended under section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b); section 11 of the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. §  3311); and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-17 and 510-20).

   The provisions of this §  87.127 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227; amended August 8, 2008, effective August 9, 2008, 38 Pa.B. 4355. Immediately preceding text appears at serial pages (244095) to (244100) and (206827).

   The appellant’s challenge to restrictions which the EQB promulgated under Federal law was a challenge to a State regulation and, therefore, the EQB had jurisdiction. Croner, Inc. v. Department of Environmental Resources, 589 A.2d 1183, 1187 (Pa. Commw. 1991).

 A record of each blast shall be retained for at least 3 years and shall be available for inspection by the Department and the public on request. Seismographic reports, if applicable, must be made a part of that record. The record must contain the following data:

   (1)  The name of the operator conducting the blast.

   (2)  The location, date and time of blast.

   (3)  The name, signature and license number of blaster-in-charge.

   (4)  The identification of and the direction and distance, in feet, to the nearest dwelling, public building, school, church, commercial or institutional building or other structure.

   (5)  Weather conditions, including temperatures, wind direction and approximate velocity.

   (6)  The type of material blasted.

   (7)  The number of holes, burden and spacing.

   (8)  The diameter and depth of holes.

   (9)  The types of explosives used.

   (10)  The total weight of explosives used.

   (11)  The maximum weight of explosives detonated per delay interval.

   (12)  The maximum number of holes detonated per delay interval.

   (13)  The initiation system.

   (14)  The type and length of stemming.

   (15)  The mats or other protections used.

   (16)  The type of delay detonator and delay periods used.

   (17)  A sketch of the blast pattern, including number of holes, burden, spacing, decks and delay pattern.

   (18)  The number of persons in the blasting crew.

   (19)  Seismographic and airblast records, when required, including the type of instrument, sensitivity and calibration signal of the gain setting or certification of annual calibration and the following:

     (i)   The seismographic or airblast level, or both, reading, including the exact location of seismograph and its distance from the blast.

     (ii)   The name of the person taking the seismograph reading.

     (iii)   The name of person and firm analyzing the seismographic record.

   (20)  The reasons and conditions for each unscheduled blast.

   The provisions of this §  87.129 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20); amended under section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b); section 11 of the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. §  3311); and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. §  510-17 and 510-20).

   The provisions of this §  87.129 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended August 8, 2008, effective August 9, 2008, 38 Pa.B. 4355. Immediately preceding text appears at serial pages (198984) to (198985).

   A coal mining operator charged with a violation of the air blast calibration requirements could challenge the violation and the amount of the fine in one appeal proceeding even though the fine was issued after the expiration of the appeal period for challenging the compliance order and the company did not timely appeal the compliance order. Kent Coal Mining Co. v. Department of Environmental Resources, 550 A.2d 279 (Pa. Cmwlth. 1988).

 (a)  Spoil not required to achieve the approximate original contour shall be transported and placed in designated disposal areas approved by the Department within the permit area. The disposal area shall be designed, constructed and maintained to ensure:

   (1)  That leachate and surface runoff from the fill will not degrade surface or groundwater or exceed the effluent limitations of §  87.102 (relating to hydrologic balance: effluent standards).

   (2)  The prevention of combustion.

   (3)  The stability of the fill.

   (4)  That the land mass designated as the 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 registered professional engineer, and approved by the Department.

 (c)  The excess spoil disposal fill shall be designed to attain a long-term static factor of safety of 1.5 and a seismic factor of safety of 1.1 based upon dataobtained from subsurface exploration, geotechnical testing, foundation design, fill design and accepted engineering analyses.

 (d)  Vegetative and organic materials shall be removed from the disposal area and the topsoil shall be removed, segregated and stored or replaced as provided in § §  87.96—87.100. If approved by the Department, organic material may be used as mulch or may be included in the topsoil to control erosion, promote growth of vegetation or increase the moisture retention of the soil.

 (e)  The excess spoil disposal area should be located in areas where groundwater discharge and surface water flows are minimal.

 (f)  The disposal areas shall be located on the most moderately sloping and naturally stable areas available as approved by the Department. If the placement provides additional stability and prevents mass movement, fill materials suitable for disposal shall be placed upon or above a natural terrace, bench or berm.

 (g)  The spoil shall be hauled or conveyed and placed in a controlled manner and concurrently compacted as approved by the Department in lifts no greater than 4 feet, or less if required 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.

 (h)  The final configuration of the fill shall be suitable for postmining land uses approved in accordance with §  87.159 (relating to postmining land use), except that no depressions or impoundments may be allowed on the completed fill. The fill may not exceed the approximate elevation of the ridgeline.

 (i)  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 clay 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.

 (j)  Terraces may be utilized to control erosion and enhance stability or for roads if approved by the Department and consistent with the approved postmining land use.

 (k)  When the slope in the disposal area exceeds lv:2.8h-36% or a lesser slope designated by the Department based on local conditions, keyway cuts (excavations to stable bedrock) or rock toe buttresses shall be constructed to stabilize the fill. When the toe of the spoil rests on a downslope, stability analyses shall be performed in accordance with §  87.79 (relating to disposal of excess spoil) to determine the size of rock toe buttresses and key way cuts.

 (l)  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 designed to pass safely the peak runoff from a 100-year precipitation event. Diversion design shall comply with the requirements of §  87.105 (relating to hydrologic balance: diversions).

 (m)  Surface water runoff from the fill shall be diverted off the fill to properly designed channels which will pass safely the peak runoff from a 100-year precipitation event. Diversion design shall comply with the requirements of §  87.105.

 (n)  The fill shall be inspected for stability by a qualified registered professional engineer or other qualified professional specialist experienced in the construction of earth and rockfill embankments and working under the direction of a qualified registered professional engineer. These inspections shall occur at least quarterly throughout construction and during the following critical construction periods: removal of organic material and topsoil, placement of underdrainage systems, installation of surface drainage systems, placement and compaction of fill materials and revegetation. The qualified registered professional engineer shall provide to the Department a certified report within 2 weeks after each inspection that the fill has been constructed and maintained in accordance with the approved design, in accordance with the approved plan, and in accordance with all applicable performance standards and this chapter. The report shall include appearances of instability, structural weakness and other hazardous conditions. A copy of the report shall be retained at the minesite.

 (o)  Coal processing waste may be disposed of in the disposal area if the requirements of Chapter 90 (relating to coal refuse disposal) are met.

 (p)  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 protected by an adequate filter and ensure continued free drainage.

 (q)  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 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- or toxic-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 slake in water.

   (2)  An underdrain system shall be designed to be installed along with 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.

 (r)  The certified report required under subsection (n) shall include, as part of reporting on the underdrain/subdrainage system and filter system, color photographs taken during and after construction, but before the underdrains are covered with excess spoil. If the underdrain is constructed in phases, each phase shall be certified separately. Photographs shall be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

 (s)  The foundation and abutments of the fill shall be stable under all conditions of construction and operation. Sufficient foundation investigation and laboratory testing of foundation materials shall be performed to determine the design requirements for stability of the foundation. Analyses of foundation conditions shall include the effect of underground mine workings, if any, upon the stability of the structure.

 (t)  Excess spoil may be returned to underground mine workings, but only in accordance with a disposal program approved by the Department and MSHA in accordance with Chapter 89 (relating to underground mining of coal and coal preparation facilities).

   The provisions of this §  87.131 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.131 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 11, 1992, effective December 12, 1992, 22 Pa.B. 5945; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial pages (198985) to (198988).

 (a)  Surface coal mining activities, except support activities, may not be conducted closer than 500 feet to any point of either an active or abandoned underground mine, except to the extent that:

   (1)  The nature, timing and sequence of the operations that propose to mine closer than 500 feet to an active underground mine are jointly approved by the Department and the Mine Safety and Health Administration.

   (2)  In the case of operations that propose to mine closer than 500 feet of an abandoned underground mine, the nature, timing and sequence of the operations are approved by the Department.

   (3)  The activities result in improved resource recovery, abatement of water pollution or elimination of hazards to the health and safety of the public.

 (b)  Surface mining activities shall be designed to protect disturbed surface areas, including spoil disposal areas, so as not to endanger surface or underground mining activities.

   The provisions of this §  87.135 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.135 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial pages (198988) to (198989).

 Noncoal wastes, including, but not limited to, grease, lubricants, paints, flammable liquids, garbage and other hazardous wastes shall be disposed of or stored temporarily in accordance with the Solid Waste Management Act (35 P. S. § §  6018.101—6018.1003) and the regulations promulgated thereunder. Storage shall be such that fires are prevented and that the area remains stable and suitable for reclamation and revegetation.

   The provisions of this §  87.136 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.136 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial page (198989).

 Air pollution control measures shall be planned and employed as an integral part of the surface mining activities and shall meet the following requirements:

   (1)  If processing facilities are to be used at the mining site, the facilities shall meet the requirements of Chapters 123 and 127 (relating to standards for contaminants; and construction, modification, reactivation and operation of sources).

   (2)  Fugitive dust control measures shall demonstrate compliance with Chapters 121, 123, 127 and 129.

   The provisions of this §  87.137 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  A person conducting surface mining activities shall, to the extent possible using the best technology currently available:

   (1)  Minimize disturbances and adverse impacts of the activities on fish, wildlife and related environmental values, and achieve enhancement of the resources when practicable.

   (2)  Locate and operate haul and access roads to avoid or minimize impacts to fish and wildlife species or other species protected by State or Federal law.

   (3)  Avoid disturbance to, enhance where practicable, or restore, habitats of unusually high value for fish and wildlife.

   (4)  Restore, enhance when practicable, or maintain natural riparian vegetation on the banks of streams, lakes and other wetland areas.

   (5)  Not use restricted pesticides on the areas during surface mining and reclamation activities, unless approved by the Department of Agriculture.

   (6)  Do the following, if fish and wildlife habitat is the postmining land use, in addition to the requirements of § §  87.147—87.153, 87.155 and 87.156:

     (i)   Select plant species to be used on reclaimed areas, based on the following criteria:

       (A)   Their proven nutritional value for fish and wildlife.

       (B)   Their uses as cover for fish and wildlife.

       (C)   Their ability to support and enhance fish and wildlife habitat after release of bonds.

     (ii)   Distribute plant grouping to maximize benefit to fish and wildlife. Plants should be grouped and distributed in a manner which optimizes edge effect, cover and other benefits for fish and wildlife.

   (7)  Intersperse the fields with trees, hedges or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types for birds and other animals, when cropland is to be the alternative postmining land use and when appropriate for wildlife and crop management practices. Wetlands shall be preserved or created rather than drained or otherwise permanently abolished.

   (8)  Intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs and trees useful as food and cover for birds and small animals, unless the green belts are inconsistent with the approved postmining land use, when the primary land use is to be residential, public service or industrial land use.

   (9)  Design fences, overland conveyors and other potential barriers to permit passage for large mammals, except if the Department determines that the requirements are unnecessary.

   (10)  Fence, cover or use other appropriate methods to exclude wildlife from ponds which contain hazardous concentrations of toxic-forming materials.

 (b)  A person who conducts surface mining activities shall promptly report to the Department the presence in the permit area of threatened or endangered species under State or Federal laws of which that person becomes aware and which was not previously reported to the Department by that person. Upon notification, the Department will consult with the Game Commission or the Fish and Boat Commission and appropriate Federal fish and wildlife agencies and, after consultation, will identify whether, and under what conditions, the operator may proceed.

 (c)  Surface mining activity may not be conducted in a manner which would result in the unlawful taking of a bald or golden eagle, its nest or its eggs. The operator shall promptly report to the Department a golden or bald eagle nest within the permit area of which the operator becomes aware. Upon notification, the Department will consult with the United States Fish and Wildlife Service and the Game Commission and, after consultation, will identify whether, and under what conditions, the operator may proceed.

 (d)  Surface mining activity may not be conducted which is likely to jeopardize the continued existence of endangered or threatened species listed by the Secretary of the Interior, the Game Commission or the Fish and Boat Commission or which is likely to result in the destruction or adverse modification of designated critical habitats of these species in violation of the Endangered Species Act of 1973 (16 U.S.C.A. § §  1531—1544).

   The provisions of this §  87.138 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  87.138 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206833) to (206835).

 (a)  An undisturbed natural barrier shall be provided beginning at the elevation of the lowest coal seam to be mined and extending from the outslope for such distance as may be determined by the Department as is needed to assure stability. The barrier shall be retained in place to prevent slides and erosion.

 (b)  At any time a slide occurs which may have a potential adverse affect on public property, health, safety or the environment, the operator shall notify the Department by the fastest available means and shall implement all necessary remedial measures in the manner acceptable to the Department.

 Reclamation efforts including, but not limited to, backfilling, grading, topsoil replacement and revegetation of all land that is disturbed by surface mining activities shall occur in accordance with § §  87.141, 87.142, 87.144—87.148.

 (a)  Disturbed areas shall be returned to their approximate original contour except as specifically exempted in §  87.142 or §  87.175 (relating to backfilling and grading: reaffecting previously mined lands; and variance to contouring). Spoil shall be transported, backfilled, compacted—when advisable to insure stability or to prevent leaching—and graded to eliminate spoil piles and depressions. Excess spoil material shall be disposed under §  87.131 (relating to disposal of excess spoil).

 (b)  Backfilled material shall be placed to minimize off-site effects and to support the approved postmining land use.

 (c)  Timing of backfilling and grading shall be concurrent with mining and comply with the following:

   (1)  Backfilling and grading shall follow coal removal by not more than 60 days unless the approved operation and reclamation plan contains an alternative schedule based on the applicant’s ability to demonstrate through a detailed written analysis under §  87.68(3) (relating to reclamation information) that additional time is necessary.

   (2)  Backfilling and grading may not be more than 300 horizontal feet from the face of the highwall and no more than 1500 horizontal feet of pit may be open at one time. The Department may, in writing, approve distances in excess of these requirements as part of the approved operation and reclamation plan if the operator demonstrates, through a detailed written analysis under §  87.68(3), that additional distance is needed for reason of multiple seam mining, the size or amount of equipment being used, topography or method of mining.

 (d)  Backfilling equipment needed to complete the restoration may not be removed from the operation until backfilling and leveling has been completed and approved in writing by the Department. Upon written request by the operator to the Department specifying the need to remove backfilling equipment for protection of backfilling equipment from weather conditions, for required maintenance or for protection from vandalism during strikes, the Department may approve, in writing, the temporary removal if inspection of the site demonstrates that the operation is in compliance with the rules of the EQB and the statutes of the Commonwealth relating to environmental protection and that the request for temporary removal is justified for the reasons specified by the operator. Temporarily removed backfilling equipment shall be returned to the site promptly upon the Department’s direction. Backfilling equipment shall be operable, in use and capable of meeting the requirements of the reclamation plan throughout the life of the mining operation.

   The provisions of this §  87.141 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316. Immediately preceding text appears at serial pages (148682) to (148683).

 When the surface mining activities are affecting lands that had previously been mined to prior current practices and standards, the Department may approve, in writing, terracing as an alternative to contouring of the areas if the operator demonstrates that:

   (1)  The area proposed to be affected cannot be reclaimed to approximate original contour.

   (2)  Reaffecting the area is likely to produce an environmental benefit.

   (3)  Overburden and spoil is retained on the solid portion of existing or new benches.

   (4)  The highwall is eliminated.

   (5)  The area is backfilled and graded to the most moderate slope possible in eliminating the highwall. The final slopes shall achieve a minimum static safety factor of 1.3.

   (6)  The final slopes are consistent with the approved postmining land use.

   The provisions of this §  87.142 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316. Immediately preceding text appears at serial pages (148683) to (148684).

 (a)  The final graded slopes shall approximate premining slopes, or any lesser slopes approved by the Department based on consideration of soil, climate or other characteristics of the surrounding area.

 (b)  Postmining final graded slopes need not be uniform, but shall approximate the general nature of the premining topography.

 (c)  On approval by the Department in order to conserve soil moisture, ensure stability and control erosion on final graded slopes, cut and fill terraces may be allowed if the terraces are compatible with the approved postmining land use and are substitutes for construction of lower grades on the reclaimed lands.

 (d)  Small depressions may be constructed, if they:

   (1)  Are approved by the Department to minimize erosion, conserve soil moisture or promote vegetation.

   (2)  Do not restrict normal access.

   (3)  Are not inappropriate substitutes for lower grades on the reclaimed lands.

 (e)  All surface mining activities on slopes above 20°, or on lesser slopes that the Department defines as steep slopes, shall meet § §  87.158 and 87.159 (relating to cessation of operations: permanent; and postmining land use).

 (f)  All final grading, preparation of overburden before replacement of topsoil and placement of topsoil shall be conducted in a manner which minimizes erosion and provides a surface for replacement of topsoil which will minimize slippage.

   The provisions of this §  87.144 adopted December 19, 1990, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206838) to (206839).

 Unless otherwise approved by the Department, exposed coal seams, acid-forming material, toxic-forming materials and combustible materials, other than coal refuse shall be handled in the following manner:

   (1)  The material shall be buried above the groundwater table and shall be placed at a minimum of 5 feet above the coal seam and alternated with layers of clean spoil. Each layer of the material may not exceed 24 inches and each layer of nontoxic spoil may not exceed 30 inches. The top layer of nontoxic spoil shall be a minimum thickness of 4 feet.

   (2)  If necessary, these materials shall be treated to prevent water pollution and combustion and minimize adverse effects on plant growth and land uses.

   (3)  When necessary to protect against upward migration of salts, exposure by erosion, formation of acid or toxic seeps, to provide an adequate depth for plant growth, or otherwise to meet local conditions, the Department will specify thicker amounts of cover using nontoxic material or special compaction and isolation from groundwater contact.

   The provisions of this §  87.145 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Exposed surface areas shall be protected and stabilized to effectively control erosion and air pollution attendant to erosion.

 (b)  Rills and gullies, which form in areas that have been regraded and topsoiled and which do one of the following shall be filled, regraded or otherwise stabilized:

   (1)  Disrupt the approved postmining land use or the reestablishment of the vegetative cover.

   (2)  Cause or contribute to a violation of water quality standards for receiving streams.

 (c)  For the areas listed in subsection (b), the topsoil shall be replaced and the areas shall be reseeded or replanted.

   The provisions of this §  87.146 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial page (206840).

 (a)  Vegetation shall be established on land affected by surface mining activities.

 (b)  Revegetation shall provide for a diverse, effective and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area, except that introduced species may be used in the revegetation process when desirable and necessary to achieve the approved postmining land use plan. Vegetative cover shall be considered of the same seasonal variety when it consists of a mixture of species of equal or superior utility for the approved postmining land use, when compared with the utility of naturally occurring vegetation during each season of the year.

   (1)  For areas previously disturbed by surface mining activities that were not reclaimed to the standards of SMCRA and this chapter, and are proposed to be reaffected or redisturbed, the Department may approve a vegetative cover which, at a minimum, may not be less than the vegetative cover existing before redisturbance and shall be adequate to control erosion and achieve the approved postmining land use.

   (2)  For areas designated as prime farmland, § §  87.177—87.181 apply.

 (c)  Revegetation shall provide a quick-germinating, fast-growing vegetative cover capable of stabilizing the soil surface from erosion.

 (d)  Revegetation shall be completed in compliance with the plans submitted under §  87.68 (relating to reclamation information) as approved by the Department in the permit and carried out in a manner that encourages a prompt vegetative cover and recovery of productivity levels compatible with the approved postmining land use.

   The provisions of this §  87.147 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2215. Immediately preceding text appears at serial pages (206840) to (206841).

 (a)  A disturbed area shall be seeded and planted when weather and planting conditions permit, but the seeding and planting of a disturbed area shall be performed prior to the end of the first full normal period for favorable planting after backfilling and grading. The normal periods for favorable planting are:

   (1)  Early spring until May 30, and August 10 until September 15 for permanent herbaceous species.

   (2)  Early spring until May 20 for woody species.

 (b)  When necessary to control erosion effectively, the disturbed area shall be seeded and planted as contemporaneously as practicable with the completion of backfilling and grading with a temporary cover of small grain, grasses or legumes until a permanent cover is established.

 (c)  The periods listed in subsection (a) may be extended by the Department when abnormal weather conditions or excessive soil moisture conditions exist which prohibit seeding and planting prior to the end of the first full normal period for favorable planting after backfilling and grading or when weather conditions allow for favorable planting outside the normal periods.

   The provisions of this §  87.148 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316. Immediately preceding text appears at serial pages (148688) to (148689).

 The use of introduced species in the revegetation process may be approved by the Department under the following conditions:

   (1)  The species have been proven acceptable through field trials to be capable of providing permanent vegetation and are desirable and necessary to achieve the approved postmining land use.

   (2)  The species are necessary to achieve a quick, temporary and stabilizing cover that aids in controlling erosion, and measures to establish permanent vegetation are included in the approved plan submitted in §  87.68 (relating to reclamation information).

   (3)  The species are compatible with the plant and animal species of the region.

   (4)  The species meet the requirements of applicable State and Federal seed or introduced species statutes and are not poisonous or noxious.

   The provisions of this §  87.149 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 When the approved postmining land use is cropland, the planting of agriculture crops normally grown in the general locality of the permit area will satisfy the revegetation requirements of §  87.147 (relating to revegetation: general requirements). If planting of the crop will be delayed, a temporary cover of annual or perennial grasses or small grains shall be established.

   The provisions of this §  87.150 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Species, rates and techniques of seeding and planting shall be adequate to achieve the standards for successful revegetation of §  87.155 (relating to revegetation: standards for successful revegetation).

 (b)  Legume seed shall be inoculated or treated with the specific inoculant for that seed, and the seed shall be seeded within 24 hours after inoculation or treatment.

 (c)  A single tree or shrub species may not comprise more than 50% of the total number of seedlings planted.

 (d)  When the approved postmining land use is fish and wildlife habitat, unless alternative plans are approved or required by the Department, a minimum of 75% of the land affected shall be planted with a mixture of woody species which provides a diverse plant community. The remaining affected area shall be planted to an approved herbaceous cover. The configuration and species composition of the cover types shall be established in accordance with guidelines established by the Fish and Boat Commission and the Game Commission.

   The provisions of this §  87.151 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial pages (176072) and (170013).

 (a)  The soil surface shall be prepared by disking or harrowing. If soil conditions or steep slopes prohibit these practices, the soil surface shall be scarified by any mechanical method which will loosen the surface material. Scarification will not be required if seeding is done immediately following final grading when the soil is still loose.

 (b)  Disking or harrowing shall be accomplished following or along the contours of all slopes.

 (c)  Topsoil shall be disked or harrowed to a depth of at least three inches prior to seeding.

   The provisions of this §  87.152 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Mulch shall be applied to all regraded and topsoiled areas at rates adequate to control erosion, promote germination of seeds and increase the moisture retention of the soil, except the Department may waive the requirement for mulch under the following conditions:

   (1)  When seeding can be accomplished using a conventional agricultural farm drill.

   (2)  When the approved postmining land use is for agricultural row crops.

   (3)  When annual grasses or small grains will be seeded immediately following final grading, resulting in a quick vegetative cover which will provide adequate soil erosion control.

   (4)  When the permittee can demonstrate that alternative procedures will achieve the standards for revegetation success of §  87.155 (relating to revegetation: standards for successful revegetation).

 (b)  When required by the Department, mulches shall be mechanically or chemically anchored to the soil surface.

 (c)  Chemical soil stabilizers may be used alone or in combination with appropriate mulches.

   The provisions of this §  87.153 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

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

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

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

   (3)  The productivity or yield of the mined area shall be equal to or greater than the approved standard for the last two consecutive growing seasons of the 5-year responsibility period established in §  86.151 (relating to period of liability). Productivity or yield shall be considered equal if production or yield is at least 90% of the approved standard.

 (b)  When the approved postmining land use is other than cropland:

   (1)  The standards for successful revegetation shall be determined by ground cover.

   (2)  The approved standard shall be the percent ground cover of the vegetation which exists on the proposed area to be affected by surface mining activities. The Department will not approve less than a minimum of 70% ground cover of permanent plant species with not more than 1% of the area having less than 30% ground cover with no single or contiguous area having less than 30% ground cover exceeding 3,000 square feet. When woody species are planted in mixture with herbaceous species, the standards in this paragraph shall be met and a minimum of 400 woody plants per acre shall be established except:

     (i)   On slopes greater than 20 degrees, the minimum number of woody plants shall be 600 per acre.

     (ii)   When the approved postmining land use is commercial forest land, the minimum number of woody plants shall be 450 trees per acre with at least 75% commercial tree species.

     (iii)   When the approved postmining land use is wildlife habitat, the requirements of §  87.151(d) (relating to revegetation: species) shall apply and the areas approved for the planting of woody species shall have a stocking equal to or greater than 90% of the stocking of woody plants of the same life form on the proposed area to be affected by surface mining activities. The Department will not approve stocking of less than 400 woody plants per acre.

   (3)  The percent ground cover of the mined area shall meet the standards of paragraph (2) for a minimum of the last 2 consecutive years of the 5-year period of responsibility.

   (4)  For purposes of this section, ‘‘herbaceous species’’ means grasses, legumes, and nonleguminous forbs; ‘‘woody plants’’ means woody shrubs, trees and vines; and ‘‘ground cover’’ means the area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of measurement.

   (5)  Trees and shrubs counted in determining revegetation success shall be healthy and have been in place for at least two growing seasons.

 (c)  When the approved postmining land use is pastureland, the crop productivity standards of subsection (a) and the ground cover standards of subsection (b) shall be met.

   The provisions of this §  87.155 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial pages (170014) to (170016).

 The person who conducts surface mining activities shall conduct periodic measurements of vegetation to identify conditions during the applicable periods of responsibility specified in §  86.151 (relating to period of liability). The permittee shall report the findings of these measurements to the Department.

   The provisions of this §  87.156 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (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 the areas and identification of the backfilling, regrading, vegetation, monitoring and water treatment activities which will continue during the temporary cessation.

 (b)  Temporary cessation of an operation may not exceed 90 days unless the Department approves a longer period not to exceed 180 days or unless the Department approves a longer period for reasons of seasonal shutdown or labor strike.

 (c)  Temporary cessation does not relieve the operator of the obligations to comply with the permit.

 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.

   The provisions of this §  87.158 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Prior to the release of land from permit area in accordance with Chapter 86, Subchapter F (relating to bonding and insurance requirements), affected areas shall be restored in a timely manner to conditions that are capable of supporting the uses which they were capable of supporting before any mining, or to higher and better uses achievable under criteria and procedures of this section.

 (b)  The premining use of land to which the postmining land use is compared shall be determined by the following:

   (1)  The postmining land use for land that has not been previously mined and has been properly managed shall be judged on the basis of those uses which the land previously supported.

   (2)  The postmining land use for land that has been previously mined and not reclaimed shall be judged on the basis of the condition prior to any mining or to a higher or better use that can be achieved and is compatible with surrounding areas.

 (c)  Alternative land uses may be approved by the Department after consultation with the landowner or the land management agency having jurisdiction over the lands and after determining that the following criteria are met:

   (1)  The proposed postmining land use is compatible with adjacent land use and applicable land use policies, plans, and programs and Federal, State and local law. A written statement of the views of the authorities with statutory responsibilities for land use policies and plans is submitted to the Department before surface mining activities begin. Any required approval, including any necessary zoning or other changes required for land use by local, State or Federal land management agencies, is obtained and remains valid throughout the surface mining activities.

   (2)  The owner of the surface requests in a notarized written statement that the alternative land use be approved.

   (3)  The proposed postmining land use is reasonably likely to be achieved which may be demonstrated by one or more of the following or other similar criteria:

     (i)   Specific plans are prepared and submitted to the Department which show the feasibility of the postmining land use as related to projected land use trends and markets. The plan shall include a schedule showing how the proposed use will be developed and achieved within a reasonable time after mining and how the development will be sustained. The Department may require appropriate demonstrations to show that the planned procedures are feasible, reasonable and integrated with mining and reclamation, and that the plans will result in successful reclamation.

     (ii)   Provision for necessary public facilities is ensured with letters of commitment from parties other than the person who conducts surface mining activities, as appropriate to provide the public facilities in a manner compatible with the plans submitted under §  87.75 (relating to postmining land uses). The letters shall be submitted to the Department before surface mining activities begin.

     (iii)   The applicant presents specific plans for the proposed postmining land use and appropriate assurances that the use will be practicable with respect to private financial capability for completion of the proposed use.

   (4)  The proposed use will neither pose an actual threat to public health or safety or of water diminution, interruption, contamination or pollution.

   (5)  The use will not involve unreasonable delays in reclamation or implementation.

   (6)  Necessary approval of measures to prevent or mitigate adverse effects on fish, wildlife and related environmental values and threatened or endangered plants is obtained from the Department, and appropriate State and Federal fish and wildlife management agencies have been provided a 30-day period in which to review the plan before surface mining activities begin.

   The provisions of this §  87.159 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206847) to (206849).

 (a)  Haul roads and access roads shall be designed, constructed and maintained to control or prevent erosion and contributions of sediment to streams or runoff outside the affected area; air and water pollution; damage to fish and wildlife or their habitat; flooding; and damage to public or private property. To ensure environmental protection appropriate for their planned duration and use, including consideration of the type and size of equipment used, the design and construction or reconstruction of roads shall incorporate appropriate limits for grade, width, surface materials, surface drainage control, culvert placement and culvert size, in accordance with current, prudent engineering practices and necessary design criteria established by the Department. Upon completion of the associated surface mining activities, the area disturbed by the road shall be restored in accordance with §  87.166 (relating to haul roads and access roads: restoration) unless retention of the road is approved as part of the postmining land use.

 (b)  The haul or access road may not be located in or within 100 feet (30.48 meters) of a perennial or intermittent stream except in accordance with §  86.102 (relating to areas where mining is prohibited or limited). A crossing of a perennial or intermittent stream shall be made using bridges, culverts or similar structures. Bridges, culverts or other encroachment or water obstruction shall meet the requirements of Chapter 105 (relating to dam safety and waterway management).

 (c)  Each road shall have a drainage system that is compatible with the natural drainage system, is structurally stable, and which will pass safely the peak flow from a 10-year, 24-hour precipitation event or larger event if required by the Department. The drainage system shall include a sloped or crowned road surface, cross drains or culverts, stabilized ditches, erosion-resistant surfacing, sediment traps and other appropriate sediment control measures as required by §  87.106 (relating to hydrologic balance: sediment control measures).

 (d)  Roads shall be constructed on stable areas that avoid wet or unstable soils.

 (e)  Prior to the construction of the road, topsoil shall be removed, stored on a stable site and protected against erosion and compaction until restoration of the haul road.

 (f)  Disturbed areas adjacent to the road shall be vegetated or otherwise stabilized to prevent erosion.

 (g)  Haul roads shall be surfaced with material sufficiently durable for the anticipated volume of traffic and the weight and speed of vehicles using the road. Acid or toxic-forming material may not be used for surfacing or construction of a road except where the road is within the confines of a coal refuse disposal or reprocessing area and the effluent meets the requirements of §  87.102 (relating to hydrologic balance: effluent standards).

 (h)  A road damaged by a catastrophic event, such as a flood or earthquake, shall be repaired or reclaimed as soon as practicable after the damage has occurred.

 (i)  Haul roads and roads approved as part of the postmining land use shall be certified by a qualified registered professional engineer or qualified registered land surveyor that the roads have been constructed or reconstructed as designed in accordance with the approved plan.

   The provisions of this §  87.160 amended under 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).

   The provisions of this §  87.160 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227; amended May 31, 2002, effective June 1, 2002, 32 Pa.B. 2686. Immediately preceding text appears at serial pages (244116) to (244118).

 Unless the Department approves retention of a road as suitable for the approved postmining land use in accordance with §  87.159 (relating to postmining land use), as soon as practicable after the road is no longer needed for the associated surface mining activities:

   (1)  The road shall be physically closed to vehicular traffic.

   (2)  The road and adjacent slopes shall be regraded to blend with the natural contours and drainage pattern.

   (3)  Bridges and culverts shall be removed.

   (4)  Roadbeds shall be ripped or scarified.

   (5)  Fill slopes shall be rounded or reduced and shaped to conform the site to adjacent terrain and to meet natural drainage restoration standards.

   (6)  Cut slopes shall be shaped to blend with the natural contour.

   (7)  Cross drains, dikes and water bars shall be constructed to minimize erosion.

   (8)  Terraces shall be constructed as necessary to prevent excessive erosion and to provide long-term stability in cut and fill slopes.

   (9)  Road surfacing materials shall be removed if the materials are incompatible with the postmining land use and establishment of vegetation.

   (10)  Disturbed areas shall be covered with topsoil in accordance with § §  87.96—87.100 and revegetated in accordance with §  87.147 (relating to revegetation: general requirements).

   (11)  Excess material and debris shall be disposed of in a manner approved by the Department.

   The provisions of this §  87.166 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206851) to (206852).

 Railroad loops, spurs, sidings, surface conveyor systems, chutes, aerial tramways or other transportation facilities shall be designed, constructed or reconstructed, and maintained, and the area restored to:

   (1)  Prevent, to the maximum extent possible using the best technology currently available:

     (i)   Damage to fish, wildlife and related environmental values.

     (ii)   Erosion and additional contributions of suspended solids to stream flow or runoff outside the permit area. Any such contributions may not be in excess of limitations of State or Federal law.

   (2)  Control and minimize diminution of water quantity and prevent pollution.

   (3)  Prevent air pollution.

   (4)  Prevent damage to public or private property.

   The provisions of this §  87.172 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Support facilities required for, or used incidentally to, the operation of the mine, including, but not limited to, mine buildings, coal loading facilities at or near the mine-site, coal storage facilities, equipment storage facilities, fan buildings, hoist buildings, preparation plants, sheds, shops and other buildings shall be located, maintained and used in a manner that does the following:

   (1)  Prevents or controls erosion and siltation, water pollution and damage to public or private property.

   (2)  To the extent possible using the best technology currently available minimizes:

     (i)   Damage to fish, wildlife and related environmental values.

     (ii)   Additional contributions of suspended solids to streamflow or runoff outside the permit area. These contributions may not be in excess of limitations of State or Federal law.

 (b)  All surface mining activities shall be conducted in a manner which minimizes damage, destruction or disruption of services provided by oil, gas and water wells; oil, gas and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under or through the permit area, unless otherwise approved by the owner of those facilities and the Department.

 (a)  Each person who conducts or intends to conduct surface mining and reclamation operations on steep slopes shall comply with this subchapter and this section, except to the extent a variance is approved under §  87.175 (relating to variance to contouring).

 (b)  Debris, from clearing and grubbing of haul road construction, abandoned or disabled equipment, spoil material, waste mineral matter or other waste material may not be placed on the downslope below the bench or mining cut, except for material used to construct road embankment in accordance with § §  87.160, 87.166 and 87.172 (relating to haul roads and access roads; haul roads and access roads: restoration; and other transportation facilities).

 (c)  The disturbed area shall be returned to approximate original contours by completely covering the highwall with compacted spoil and grading the area in accordance with § §  87.141, 87.142 and 87.144—87.146. The person who conducts the surface mining and reclamation operation shall demonstrate to the Department, using standard geotechnical analysis, that the minimum static factor of safety for the stability of all portions of the reclaimed land is at least 1.3.

 (d)  Land above the highwall may not be disturbed unless the Department finds that the disturbance facilitates compliance with this subchapter.

 (e)  Material in excess of that required by the grading and backfilling provisions of subsection (b) shall be disposed of in accordance with the requirements of §  87.131 (relating to disposal of excess spoil).

 (f)  Woody materials may not be buried in the backfilled area unless the applicant demonstrates that the proposed method for disposal of the woody materials will not deteriorate the stability of the backfilled area as required by subsection (b). Wood may be chipped and used as mulch if the requirements of §  87.153 (relating to revegetation: mulching) are met.

   The provisions of this §  87.174 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206854) to (206855).

 (a)  The Department may approve a variance from regrading the land to approximate original contour provided the applicant demonstrates and the Department finds in writing that:

   (1)  The owner of the surface requests, in writing, that a variance be granted to render the land, after reclamation, suitable for an industrial, commercial, residential or public use, including recreational facilities.

   (2)  The watershed of the area is improved.

   (3)  The highwall is completely backfilled with spoil material, in a manner which results in static factor of safety of at least 1.3—using standard geotechnical analyses—after mining and reclamation.

   (4)  The proposed use, after consultation with the appropriate land use planning agencies, if any, constitutes an equal or better economic or public use.

   (5)  The proposed use is designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage and configuration necessary for the intended use of the site.

   (6)  Only the amount of spoil will be placed off the mine bench as is necessary to achieve the planned postmining land use, insure stability of the spoil retained on the bench and meet all other requirements of this chapter. All spoil not retained on the bench shall be placed in accordance with § §  87.131, 87.141, 87.142, 87.144 and 87.145.

   (7)  The requirements of §  87.159 (relating to postmining land use) for alternate postmining land use are met.

   (8)  Land above the highwall is disturbed only to the extent that is necessary to do one of the following:

     (i)   Blend the solid highwall and the backfilled material.

     (ii)   Control surface runoff.

     (iii)   Provide access to the area above the highwall.

     (iv)   Meet the requirements of this chapter.

 (b)  The watershed shall only be deemed improved if:

   (1)  There will be a reduction in the amount of total suspended solids or other pollutants discharged to ground or surface waters from the permit area as compared to the discharges prior to mining, so as to improve public or private uses or the ecology of such waters; or there will be reduced flood hazards within the watershed containing the permit area by reduction of the peak flow discharges from precipitation events or thaws.

   (2)  The total volume of flows from the proposed permit area, during every season of the year, will not vary in a way that adversely affects the ecology of any water or any existing or planned surface water or groundwater.

 (c)  If a variance is granted under this section, the permit shall be specifically conditioned as containing a variance from approximate original contour.

 (d)  Any permit incorporating a variance issued under this section shall be reviewed not more than 3 years from the date of issuance of the permit unless the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the variance.

   The provisions of this §  87.175 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860. Immediately preceding text appears at serial pages (72171) to (72173).

 (a)  Auger mining associated with surface mining activities shall be conducted to maximize recoverability of mineral reserves remaining after the mining activities are completed. A person who conducts auger mining operations shall leave areas of undisturbed coal to provide access for removal of those reserves by future underground mining activities, unless the person who conducts surface mining activities demonstrates to the satisfaction of the Department that the coal reserves have been depleted or are limited in thickness or extent to the point that it will not be practicable to recover the remaining coal reserves.

 (b)  An auger hole may not be made closer that 500 feet (152.40 meters) in horizontal distance to abandoned or active underground mine workings, except as approved in accordance with §  87.135 (relating to protection of underground mining).

 (c)  To prevent pollution of surface water and groundwater and to reduce fire hazards, an auger hole shall be plugged to prevent the discharge of water from the hole and access of air to the coal. An auger hole shall be plugged within 30 days after completion by backfilling and compacting noncombustible and impervious material into the hole to a depth sufficient to form a watertight seal. Plugging shall be done within 72 hours after completion if the holes are discharging water containing acid or toxic forming material.

 (d)  The Department will prohibit auger mining unless the person conducting the surface mining activities demonstrates, the following

   (1)  Adverse water quality impacts can be prevented or corrected.

   (2)  Fill stability can be achieved.

   (3)  The auger mining is necessary to maximize the utilization, recoverability or conservation of the solid fuel resources.

   (4)  Subsidence resulting from auger mining will not disturb or damage powerlines, pipelines, buildings or other facilities.

   The provisions of this §  87.176 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206856) to (206857).

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

   (1)  The approved postmining land use of these prime farmlands will be cropland.

   (2)  The applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in surrounding areas under equivalent levels of management.

   (3)  The proposed operations will be conducted in compliance with the requirements of this section and § §  87.178—87.181.

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

 (c)  Areas where mining was authorized by permits issued under SMCRA prior to August 4, 1977, are exempt from the prime farmland requirements.

   The provisions of this §  87.177 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  Soil materials to be used in the reconstruction of the prime farmland soil shall be removed before drilling, blasting or mining, in accordance with this section and in a manner that prevents mixing or contaminating these materials with undesirable material. Soil materials shall be removed in a manner that controls erosion and does not result in air and water pollution.

 (b)  The entire A horizon shall be separately removed from other soil and overburden materials.

 (c)  The B horizon, a combination of the B horizon and underlying C horizon, or other suitable soil material which will create a reconstructed soil of equal or greater productive capacity than that which existed before mining shall be separately removed from other topsoil and overburden materials.

 (d)  The underlying C horizons, other strata, or a combination of horizons or other strata to be used instead of the B horizon shall be separately removed from other topsoil and overburden materials. When replaced, these combinations shall be equal to, or more favorable for plant growth than, the B horizon.

 (e)  The minimum depth of soil and soil material to be removed for use in reconstruction of prime farmland soils shall be sufficient to meet the soil replacement requirements of §  87.180(a) (relating to prime farmland: soil replacement).

   The provisions of this §  87.178 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 If not utilized immediately, the A horizon specified in §  87.178(b) (relating to prime farmland: soil removal), and the B horizon or other suitable soil materials specified in §  89.178(c) and (d) shall be stored separately from each other and from spoil. These stockpiles shall be placed within the permit area where they are not disturbed or exposed to excessive water or wind erosion before the stockpiledhorizons can be redistributed. Stockpiles in place for more than 30 days shall meet the requirements of §  87.98 (relating to topsoil: storage).

   The provisions of this §  87.179 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  The minimum depth of soil and soil material to be reconstructed for prime farmland shall be 48 inches, or a depth equal to the depth of a subsurface horizon in the natural soil that inhibits root penetration, whichever is shallower. The Department shall specify a depth greater than 48 inches whenever necessary to restore productive capacity due to uniquely favorable soil horizons at greater depths. Soil horizons shall be considered as inhibiting root penetration if their densities, chemical properties or water supplying capacities restrict or prevent penetration by roots of plants common to the vicinity of the permit area and have little or no beneficial effect on soil productive capacity.

 (b)  Soil material shall be replaced only on land which has been first returned to final grade and scarified according to § §  87.141, 87.142, 87.144 and 87.145, unless site-specific evidence is provided to and approved by the Department showing that scarification will not enhance the capability of the reconstructed soil to achieve equivalent or higher levels of yield.

 (c)  The soil horizons or other suitable soil material shall be replaced in a manner that avoids excessive compaction and creates a reconstructed soil of equal or greater productive capacity than that which existed before mining.

 (d)  The B horizon or other suitable material specified in §  87.178(c) and (d) (relating to prime farmland: soil removal) shall be replaced to the thickness needed to meet the requirements of subsection (a).

 (e)  The A horizon specified in §  87.178(b) shall be replaced as the final surface soil layer. This surface soil layer shall equal or exceed the thickness of the original soil, as determined in §  87.83 (relating to prime farmlands), and be replaced in a manner that protects the surface layer from wind and water erosion before it is seeded or planted.

 (f)  Nutrients and soil amendments shall be applied as needed to quickly establish vegetative growth.

   The provisions of this §  87.180 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  A vegetative cover capable of stabilizing the soil surface with respect to erosion shall be established following soil replacement. Vegetation shall be in compliance with the plan approved by the Department under §  87.83 (relating to prime farmlands) and carried out in a manner that encourages prompt vegetative cover and recovery of productive capacity. The timing and mulching provisions of § §  87.148 and 87.153 (relating to revegetation: timing; and revegetation: mulching) shall be met.

 (b)  Within a time period specified in the permit but not to exceed 10 years after completion of backfilling and rough grading, any portion of the permit area which is prime farmland shall be restored to a condition capable of equivalent or higher levels of yields as nonmined prime farmland in surrounding areas under equivalent levels of management. When used for crops, crops may be grown in rotation with hay or pasture crops as defined for cropland. The Department may approve a crop use of perennial plants for hay when this is a common, long-term use of prime farmland soils in the surrounding area. The level of management shall be equivalent to that on which the target yields are based.

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

   (1)  If crops are grown, standards for determining success of restoration shall be based on crop yields. The current estimated yields under equivalent levels of management for each soil map unit and for each crop shall be used by the Department as the predetermined target level for determining success of revegetation. The target yields may be adjusted by the Department in consultation with the Secretary of Agriculture before approval of the permit application. The crop productivity or yield of the mined area shall be compared to the predetermined target level. As a minimum, the following standards shall be met:

     (i)   Average annual crop production shall be determined based upon a minimum of 3 years data. Crop production shall be measured for the 3 years immediately prior to release of bonding according to Chapter 86 Subchapter F (relating to bonding and insurance requirements).

     (ii)   Adjustment for weather-induced variability in the annual crop production may be permitted by the Department.

     (iii)   Restoration of prime farmland shall be considered a success when the adjusted 3 year average annual crop production is equivalent to, or higher than, the predetermined target level of crop production.

   (2)  If crops are not grown, standards for determining success of restoration shall be based on a soil survey, in addition to meeting the standards of §  87.155(b) (relating to revegetation: standards for successful revegetation). The permittee shall demonstrate to the Department that the prime farmland soil has been restored to a capability of equivalent or higher levels of yield as nonmined prime farmland of the same soil type in the surrounding area. The demonstration shall include erodability, moisture-holding capacity, permeability, depth, texture, pH and other analysis deemed relevant by the Department for determining quality of the restored soils as prime farmland.

 (d)  In all cases, soil productivity for prime farmlands shall be returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed under §  87.53 (relating to prime farmland investigation).

   The provisions of this §  87.181 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

   This section cited in 25 Pa. Code §  86.159 (relating to self-bonding); 25 Pa. Code §  87.83 (relating to prime farmlands); 25 Pa. Code §  87.147 (relating to revegetation: general requirements); and 25 Pa. Code §  87.177 (relating to prime farmland: special requirements).