Subchapter F. SURFACE COAL MINES: MINIMUM
REQUIREMENTS FOR REMINING AREAS WITH
POLLUTIONAL DISCHARGES

 (a)  This subchapter specifies procedures and rules applicable to those who seek authorization to conduct surface coal mining activities on certain areas which have been previously affected by mining activities and where mining has resulted in continuing water pollution, and describes the terms and conditions under which the Department may release bonds to operators who have received the authorization. Receipt of the authorization entitles an operator to later request bond release for areas which continue to discharge pollutional material.

 (b)  Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A and C—E apply to authorizations to mine areas with pre-existing pollutional discharges except as specifically modified by this subchapter.

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

   Abatement plan—An individual technique or combination of techniques, the implementation of which will result in reduction of the baseline pollution load. Abatement techniques include but are not limited to: Addition of alkaline material, special plans for managing toxic and acid forming material, regrading, revegetation and daylighting.

   Actual improvement—The reduction of the baseline pollution load resulting from the implementation of the approved abatement plan; except that a reduction of the baseline pollution load achieved by water treatment may not be considered as actual improvement.

   Baseline pollution load—The characterization of the pollution material being discharged from or on the pollution abatement area, described in terms of mass discharge for each parameter, including seasonal variations and variations in response to precipitation events. The Department will establish in each authorization the specific parameters, including, at a minimum, iron and acid loadings, it deems relevant for the baseline pollution load.

   Best professional judgment—The highest quality technical opinion forming the basis for the terms and conditions of the treatment level required after consideration of all reasonably available and pertinent data. The treatment levels shall be established by the Department under sections 301 and 402 of the Federal Water Pollution Control Act, act of June 30, 1948 (Ch. 758, 62 Stat. 1155).

   Best technology—Measures and practices which will abate or ameliorate to the maximum extent possible pollutional discharges from or on the pollution abatement area. These measures include engineering, geochemical or other applicable practices.

   Pollution abatement area—The part of the permit area which is causing or contributing to the baseline pollution load, which shall include adjacent and nearby areas that must be affected to bring about significant improvement of the baseline pollution load, and which may include the immediate location of the discharges.

   The provisions of this §  87.202 adopted June 28, 1985, 15 Pa.B. 2377, effective March 8, 1986, 16 Pa.B. 673.

 (a)  Authorization may not be granted under this subchapter unless the authorization is part of:

   (1)  A permit issued after March 8, 1986, but only if the authorization request is made during one of the following periods:

     (i)   At the time of the submittal of the permit application for the surface coal mining activities, including the proposed pollution abatement area.

     (ii)   Prior to a Department decision to issue or deny that permit.

   (2)  A permit revision under §  86.52 (relating to permit revisions), but only if the operator affirmatively demonstrates to the satisfaction of the Department that:

     (i)   The operator has discovered pollutional discharges within the permit area that came into existence after its permit application was approved.

     (ii)   The operator has not caused or contributed to the pollutional discharges.

     (iii)   The proposed pollution abatement area is not hydrologically connected to an area where surface mining activities have been conducted under the permit.

     (iv)   The operator has not affected the proposed pollution abatement area by surface mining activities.

     (v)   The Department has not granted a bonding authorization and mining approval for the area under §  86.37(b) (relating to criteria for permit approval or denial).

 (b)  Notwithstanding subsection (a), no authorization may be granted under this subchapter for repermitting under § §  86.12 and 86.14 (relating to continued operation under interim permits; and permit application filing deadlines), permit renewals under §  86.55 (relating to permit renewals: general requirements) or permit transfers under §  86.56 (relating to transfer of permit).

 (a)  An operator who requests authorization under this subchapter shall comply with the permit application requirements of Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A and C—E, except as specifically modified by this subchapter. The operator shall also:

   (1)  Delineate on a map the proposed pollution abatement area, including the location of the pre-existing discharges.

   (2)  Provide a description of the hydrologic balance for the proposed pollution abatement area that includes:

     (i)   Results of a detailed water quality and quantity monitoring program, including seasonal variations, variations in response to precipitation events and modeled baseline pollution loads using this monitoring program.

     (ii)   Monitoring for pH, alkalinity, acidity, total iron, total manganese, aluminum, sulfates, total suspended solids and other water quality parameters the Department deems relevant.

   (3)  Provide a description of the abatement plan that represents best technology and includes:

     (i)   Plans, cross-sections and schematic drawings describing the abatement plan proposed to be implemented.

     (ii)   A description and explanation of the range of abatement level that probably can be achieved, costs and each step in the proposed abatement plan.

     (iii)   A description of the standard of success for revegetation necessary to insure success of the abatement plan.

   (b)  The operator seeking this authorization shall continue the water quality and quantity monitoring program required by subsection (a)(2) after making the authorization request. The operator shall submit the results of this continuing monitoring program to the Department on a monthly basis until a decision on the authorization request is made.

 (a)  Authorization may not be granted under this subchapter unless the operator seeking the authorization affirmatively demonstrates to the satisfaction of the Department on the basis of information set forth in the application that:

   (1)  Neither the operator, nor an officer, principal shareholder, agent, partner, associate, parent corporation, contractor or subcontractor, or a related party as defined in §  86.63(1) (relating to compliance information) has either of the following:

     (i)   Legal responsibility or liability as an operator for treating the water pollution discharges from or on the proposed pollution abatement area.

     (ii)   Statutory responsibility or liability for reclaiming the proposed pollution abatement area.

   (2)  The proposed abatement plan will result in significant reduction of the baseline pollution load and represents best technology.

   (3)  The land within the proposed pollution abatement area can be reclaimed.

   (4)  The surface mining operation on the proposed pollution abatement area will not cause additional ground water degradation.

   (5)  The standard of success for revegetation will be achieved. The standard of success for revegetation shall be at a minimum:

     (i)   A ground cover of living plants not less than can be supported by the best available topsoil or other suitable material in the reaffected area.

     (ii)   A ground cover no less than that existing before disturbance of the area by mining activities.

     (iii)   Adequate vegetation to control erosion. Vegetation may be no less than that necessary to insure the success of the abatement plan.

   (6)  The surface mining operation on permitted areas other than the proposed pollution abatement area will not cause surface water pollution or ground water degradation.

   (7)  Requirements of §  86.37(a) (relating to criteria for permit approval or denial) that are not inconsistent with this section have been met.

 (b)  An authorization may be denied under this subchapter if granting the authorization will, or is likely to, affect a legal responsibility or liability under The Clean Streams Law (35 P. S. § §  691.1—691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.25), Chapter 86 (relating to surface and underground coal mining: general) or Subchapters A and C—E, for the proposed pollution abatement area or other areas or discharges in the vicinity of the proposed pollution abatement area.

 (c)  Authorization may not be granted under this subchapter unless there are one or more pre-existing discharges from or on the pollution abatement area.

 (d)  The authorization allowed under this subchapter is only for the pollution abatement area and does not apply to other areas of the permit.

   The provisions of this §  87.205 adopted June 28, 1985, 15 Pa.B. 2377, effective March 8, 1986, 16 Pa.B. 673.

 An operator who receives an authorization under this subchapter shall comply with the requirements of Chapter 86 (relating to surface and underground coal mining: general) and Subchapters A and C—E except as specifically modified by this subchapter. The operator shall also:

   (1)  Implement the approved water quality and quantity monitoring program for the pollution abatement area until the requirements of §  87.209 (relating to criteria and schedule for release of bonds on pollution abatement areas) are met.

   (2)  Implement the approved abatement plan.

   (3)  Notify the Department immediately prior to the completion of each step of the abatement plan.

   (4)  Provide progress reports to the Department within 30 days after the completion of each step of the abatement program that include a notarized statement signed by the operator, and if required by the Department, a statement signed by the supervising engineer, that all work has been performed in accordance with the terms and conditions of the pollution abatement authorization, the approved maps, plans, profiles and specifications.

   The provisions of this §  87.206 adopted June 28, 1985, 15 Pa.B. 2377, effective March 8, 1986, 16 Pa.B. 673.

 (a)  Except for preexisting discharges which are not encountered during mining or the implementation of the abatement plan, the operator shall comply with §  87.102 (relating to hydrologic balance: effluent standards).

 (b)  The operator shall treat the preexisting discharges which are not encountered during mining or implementation of the abatement plan to comply with the effluent limitations established by best professional judgment. The effluent limitations established by best professional judgment may not be less than the baseline pollution load. If the baseline pollution load, when expressed as a concentration for a specific parameter, satisfies the effluent limitations at §  87.102 for that parameter, the operator shall treat the preexisting discharge for that parameter to comply with either effluent limitations established by best professional judgment or the effluent limitations at §  87.102.

 (c)  For purposes of subsections (a) and (b), the term encountered may not be construed to mean diversions of surface water and shallow groundwater flow from areas undisturbed by the implementation of the abatement plan which would otherwise drain into the affected area, so long as the diversions are designed, operated and maintained under §  87.105(b)—(g) (relating to hydrologic balance: diversions).

 (d)  An operator required to treat preexisting discharges will be allowed to discontinue treating the discharges under subsection (b) when the operator affirmatively demonstrates to the Department’s satisfaction that:

   (1)  The preexisting discharges are meeting the effluent limitations established by subsection (b) as shown by groundwater and surface water monitoring conducted by the operator or the Department.

   (2)  Surface coal mining activities under the permit—including the pollution abatement area—are being or were conducted under the requirements of the permit and the authorization, and Chapter 86 (relating to surface and underground coal mining: general) and this chapter except as specifically modified by this subchapter.

   (3)  The operator has implemented each step of the abatement plan as approved in the authorization.

   (4)  The operator did not cause or allow additional groundwater degradation by reaffecting the pollution abatement area.

 (e)  If after discontinuance of treatment of discharges under subsection (d) the discharges fail to meet the effluent limitations established by subsection (b), the operator shall reinstitute treatment of the discharges under subsection (b). An operator who reinstitutes treatment under this subsection will be allowed to discontinue treatment if the requirements of subsection (d) are met.

 (f)  Discontinuance of treatment under subsection (d) may not be deemed or construed to be or to authorize a release of bond under §  87.209 (relating to criteria and schedule for release of bonds on pollution abatement areas).

   The provisions of this §  87.207 adopted June 28, 1985, 15 Pa.B. 2377, effective March 8, 1986, 16 Pa.B. 673; amended June 15, 1990, effective upon publication of notice in the Pennsylvania Bulletin that the amendments have been approved by the OSM, 20 Pa.B. 3383, see 21 Pa.B. 3316 (July 27, 1991) for OSM approval deferment; amended December 11, 1992, effective December 12, 1992, 22 Pa.B. 5945. Immediately preceding text appears at serial page (173500).

 Sections 86.172(c) and 87.209 (relating to criteria for release of bond; and criteria and schedule for release of bonds on pollution abatement areas) applies to the release of bonds for pollutional abatement areas authorized by this subchapter. Section 86.172(a), (b) and (d) shall be inapplicable to the release of bonds.

 (a)  The Department will release up to 60% of the amount of bond for the authorized pollution abatement area if the applicant demonstrates and the Department finds that:

   (1)  The surface coal mining activities were conducted on the permit area, including the pollution abatement area, under the requirements of the permit and the authorization, Chapter 86 (relating to surface and underground coal mining: general) and this chapter except as specifically modified by this subchapter.

   (2)  The operator has satisfactorily completed backfilling, regrading and drainage control under the approved reclamation plan.

   (3)  The operator has properly implemented each step of the pollution abatement plan approved and authorized under this subchapter.

   (4)  The operator has not caused degradation of the baseline pollution load at any time during the 6 months prior to the submittal of the request for bond release under this subsection and until the bond release is approved as shown by all ground and surface water monitoring conducted by the permittee under §  87.206(1) (relating to operational requirements) or conducted by the Department.

   (5)  The operator has not caused or contributed to surface water pollution or groundwater degradation by reaffecting or mining the pollution abatement area.

 (b)  The Department will release an additional amount of bond for the authorized pollution abatement area but retain an amount sufficient to cover the cost to the Department of reestablishing vegetation if completed by a third party if the operator demonstrates and the Department finds that:

   (1)  The operator has replaced the topsoil or material conserved under §  87.97(d) (relating to topsoil: removal), completed final grading, planting and established revegetation under the approved reclamation plan and achieved the standards of success for revegetation in §  87.205(a)(5) (relating to approval or denial).

   (2)  The operator has not caused or contributed to surface water pollution or groundwater degradation by reaffecting or mining the pollution abatement area.

   (3)  The operator has complied with one of the following:

     (i)   Achieved the actual improvement of the baseline pollution load described in the approved abatement plan and shown by ground and surface water monitoring conducted by the permittee for the time provided in the abatement plan after completion of backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in §  87.205(a)(5).

     (ii)   Achieved the following:

       (A)   At a minimum has not caused degradation of the baseline pollution load as shown by ground and surface water monitoring conducted by the operator or the Department for one of the following:

         (I)   For the 12 months prior to the date of application for bond release and until the bond release is approved under subsection (b), if backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in §  87.205(a)(5) have been completed.

         (II)   If treatment has been initiated at any time after initial bond release under subsection (a) and §  87.207(e) (relating to treatment of discharges), for 12 months from the discontinuance of treatment under §  87.207(d), if backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in §  87.205(a)(5) have been completed.

       (B)   Conducted the measures provided in the approved abatement plan and additional measures specified by the Department in writing at the time of initial bond release under subsection (a) for the area requested for bond release.

       (C)   Caused aesthetic or other environmental improvements or the elimination of public health and safety problems by remining and reaffecting the pollution abatement area.

       (D)   Stabilized the pollution abatement area.

 (c)  The Department will release the remaining portion of the amount of bond on the authorized pollution abatement area if the applicant demonstrates and the Department finds that:

   (1)  The operator has successfully completed the approved abatement and reclamation plans, and the pollution abatement area is capable of supporting the postmining land use approved under §  87.159 (relating to postmining land use).

   (2)  The operator has complied with the permit and the authorization, Chapter 86 and this chapter, except as specifically modified by this subchapter.

   (3)  The operator has not caused degradation of the baseline pollution load from the time of bond release under subsection (b) or, if treatment has been initiated after bond release under subsection (b) in accordance with §  87.207(e) for 5 years from the discontinuance of treatment under §  87.207(d).

   (4)  The applicable liability period has expired under §  86.151 (relating to period of liability).

   The provisions of this §  87.209 adopted June 28, 1985, 15 Pa.B. 2377, effective March 8, 1986, 16 Pa.B. 673; corrected August 21, 1992, effective October 26, 1985, 22 Pa.B. 4317; amended May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (206868) to (206870).

   This section cited in 25 Pa. Code §  87.206 (relating to operational requirements); 25 Pa. Code §  87.207 (relating to treatment of discharges); and 25 Pa. Code §  87.208 (relating to request for bond release).