Subchapter A. EROSION AND SEDIMENTATION CONTROL

§ 89.2. Scope.

 This chapter specifies procedures and rules for those who engage in underground coal mining activities, coal preparation activities and in situ processing of coal. General rules and procedures for those who engage in coal mining activities, including the activities regulated under this chapter, are in Chapter 86 (relating to surface and underground coal mining: general).

 (a)  The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Adjacent area—Land located outside the permit area, where air, surface or groundwater, fish, wildlife, vegetation or other resources protected by this chapter may be adversely impacted by mining and reclamation operations.

   Affected area—Land or water upon or in which underground mining activities are conducted or located. The term includes land in which the natural land surface has been disturbed as a result of or incidental to the surface activities of the operators including, but not limited to, private ways and roads appurtenant to this area, land excavations, workings, refuse banks, spoil banks, culm banks, tailings, repair areas, storage areas, processing areas, shipping areas, and areas in which structures, facilities, equipment, machines, tools or other materials or property which result from or are used in, underground mining operations are situated. The term also includes lands affected by the construction of new roads or the improvement or substantial use of an existing road to gain access to the site or for hauling from the site.

   Application—The documents and other information filed with the Department for the issuance of a permit.

   Aquifer—A zone, stratum or group of strata that can store and transmit water in sufficient quantities for a specific use.

   Best technology currently available—Equipment, devices, systems, methods or techniques which will:

     (i)   Prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contributions of suspended solids in excess of requirements set by applicable State or Federal laws.

     (ii)   Minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of those resources when practicable. The term includes equipment, devices, systems, methods or techniques which are currently available anywhere as determined by the Secretary, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, scheduling of activities and design of sedimentation ponds in accordance with this chapter.

   Coal preparation activity—An operation in which coal is subject to chemical or physical processing or cleaning, concentrating or other processing or preparation. The term includes a facility associated with the coal preparation activity and the activity by which the land surface has been or is disturbed as a result of or incidental to coal preparation activity of the operator including, but not limited to, the following:

     (i)   Private ways and roads appurtenant to the area, land excavations and loading facilities.

     (ii)   Storage and stockpile facilities.

     (iii)   Sheds, shops and other buildings.

     (iv)   Water treatment and water storage facilities.

     (v)   Settling basins and impoundments.

     (vi)   Areas in which are situated facilities, equipment, machines, tools or other materials or property which result from or are used in the coal preparation activity.

   Cropland—Land used for the production of adapted crops for harvest, along or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops and other similar specialty crops.

   Disturbed area—An area where vegetation, topsoil or overburden is removed or upon which topsoil, spoil, coal processing wastes, underground development wastes or noncoal waste is placed by coal mining operations.

   Diversion—A channel, embankment or other manmade structure constructed at a controlled slope to divert water from one area to another.

   Dry weather flow—The base flow or surface discharge from an area or treatment facility which occurs immediately prior to a precipitation event and which resumes 24 hours after the precipitation event ends.

   Dwelling—A building or other structure that, at the time subsidence occurs, is used either temporarily, occasionally, seasonally or permanently for human habitation.

   EPACT structures—

     (i)   Structures that are subject to repair and compensation requirements under section 720(a) of the Surface Mining Control and Reclamation Act (30 U.S.C.A. §  1309a).

     (ii)   The term includes:

       (A)   Noncommercial buildings.

       (B)   Dwellings.

       (C)   Structures adjunct to or used in conjunction with dwellings, including, but not limited to:

         (I)   Garages.

         (II)   Storage sheds and barns.

         (III)   Greenhouses and related buildings.

         (IV)   Customer-owned utilities and cables.

         (V)   Fences and other enclosures.

         (VI)   Retaining walls.

         (VII)   Paved or improved patios.

         (VIII)   Walks and driveways.

         (IX)   Septic sewage treatment facilities.

         (X)   Inground swimming pools.

         (XI)   Lot drainage and lawn and garden irrigation systems.

   EPACT water supplies—

     (i)   Water supplies that are subject to replacement under section 720(a) of the Surface Mining Control and Reclamation Act, including drinking, domestic or residential water supplies in existence prior to the date of permit application.

     (ii)   The term includes water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use.

     (iii)   The term does not include wells and springs that serve only agricultural, commercial or industrial enterprises except to the extent the water supply is for direct human consumption or human sanitation, or domestic use.

   Embankment—An artificial deposit of material that is raised above the natural surface of the land and used to contain, divert or store water, support roads or railways, or for other similar purposes.

   Ephemeral stream—A water conveyance which lacks substrates associated with flowing waters and flows only in direct response to precipitation in the immediate watershed or in response to melting snowpack and which is always above the local water table.

   Fair market value—The amount at which property would exchange hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts.

   Ground cover—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.

   Groundwater—Subsurface waters of the Commonwealth.

   Historically used for cropland—Includes the following:

     (i)   Lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease or option, of the land for the purpose of conducting or allowing, through resale, lease or option, the conduct of surface coal mining activities.

     (ii)   Lands that the Department determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion. In which case, the regulations from prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved.

     (iii)   Lands that would likely have been used as cropland for any 5 out of the last 10 years immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.

   Hydrologic balance—The relationship between the quality and quantity of water inflow to, water outflow from and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation and changes in groundwater and surface water storage.

   Impoundment—A closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment or waste.

   Interim permit—A permit issued by the Department prior to the effective date of this chapter and in accordance with the requirements of Chapter 13 (relating to compliance with the Surface Mining Control and Reclamation Act of 1977).

   Intermittent stream—A body of water flowing in a channel or bed composed primarily of substrates associated with flowing water which, during periods of the year, is below the local water table and obtains its flow from both surface runoff and groundwater discharges.

   Irreparable damage—Damage to a structure resulting from subsidence which is in one of the following categories. The term includes:

     (i)   Damage for which the total cost of repair, including improvements required by Federal, State and local law to meet current standards, would exceed the cost of replacement.

     (ii)   Damage of such magnitude that Federal, State or local law would prohibit repair of the structure.

     (iii)   Damage that weakens the strength of a structure’s foundation, load bearing walls or other load bearing structural components in a manner which would make it impossible or impractical to restore the structure to its previous strength.

     (iv)   For structures recognized as historically or architecturally significant:

       (A)   Damage which would adversely affect the structure’s historical or architectural value.

       (B)   Damage for which the cost of repair to restore the historical and architectural value of the structure with the same craftsmanship and historically and architecturally equivalent components would exceed the cost of replacement.

       (C)   Damage which would be impossible to repair to restore the historical and architectural value of the structure with the same craftsmanship and historically and architecturally equivalent components.

   Material damage—Damage that results in one of the following:

     (i)   Functional impairment of surface lands, structures, features or facilities.

     (ii)   Physical change that has a significant adverse impact on the affected land’s capability to support current or reasonably foreseeable uses or causes significant loss in production or income.

     (iii)   Significant change in the condition, appearance or utility of a structure or facility from its presubsidence condition.

   Mine—Underground areas contained within a continuous barrier of undisturbed coal and openings to the surface from those areas.

   Noncommercial building—A building, other than an occupied residential dwelling, that, at the time the subsidence occurs, is used on a regular or temporary basis as a public building or community or institutional building as those terms are defined in §  86.101 (relating to definitions). The term does not include a building used only for commercial agricultural, industrial, retail or commercial enterprises.

   Operator—A person or municipality engaged in underground mining activities as a principal, as distinguished from an agent or independent contractor. When more than one person is engaged in coal mining activities in a single operation, they shall be deemed jointly and severally responsible for compliance with the provisions of the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.31), The Clean Streams Law (35 P. S. § §  691.1—691.1001) and the Coal Refuse Disposal Control Act (52 P. S. § §  30.51—30.66).

   Overburden—The strata or material overlying a coal deposit or in between coal deposits in its natural state and shall mean such material before or after its removal by surface mining.

   Perennial stream—A body of water flowing in a channel or bed composed primarily of substrates associated with flowing waters and is capable, in the absence of pollution or other manmade stream disturbances, of supporting a benthic macroinvertebrate community which is composed of two or more recognizable taxonomic groups of organisms which are large enough to be seen by the unaided eye and can be retained by a United States Standard No. 30 sieve (28 meshs per inch, 0.595 millimeter openings) and live at least part of their life cycles within or upon available substrates in a body of water or water transport system.

   Permanent diversion—A diversion which is to remain after underground mining activities are completed and which has been approved for retention by the Department.

   Permit area—The mine and surface areas where underground mining activities occur.

   Pollution-forming materials—Earth materials or wastes which, if acted upon by air, water, weathering or microbiological processes, are likely to produce pollution as defined by The Clean Streams Law (35 P. S. § §  691.1—691.1001) and the regulations promulgated under The Clean Streams Law, or are likely to produce toxic pollutants as defined in section 101 of the Federal Water Pollution Control Act (33 U.S.C.A. §  1251), or are likely to produce chemical or physical conditions that are detrimental to biota.

   Precipitation event—A quantity of water resulting from drizzle, rain, snow, sleet or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in this chapter, the term also includes that quantity of water emanating from snow cover as snow melt in a limited period of time.

   Prime farmland—Those lands which are defined by the Secretary of Agriculture in 7 CFR 657 (relating to prime and unique farmlands) and which have historically been used for cropland as that phrase is defined in this section.

   Property to be mined—Both the surface and mineral estates on and underneath lands which are within the permit area.

   Public buildings and facilities—Structures that are owned or leased and principally used by a government agency for public business or meetings and anything built, installed, assembled or used by a government agency to provide a public service. Examples include, but are not limited to, the following:

     (i)   Government office buildings.

     (ii)   Police stations.

     (iii)   Prison complexes.

     (iv)   Municipal swimming pools.

     (v)   Municipal utilities.

     (vi)   Municipal airports.

     (vii)   Public park pavilions and maintenance facilities.

   Public water supply system—A water delivery system which does one of the following:

     (i)   Serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.

     (ii)   Provides water to a public building, church, school, hospital or nursing home.

   Rebuttable presumption area—As used in the context of water supply replacement, the area in which an operator is presumed responsible for diminishing, contaminating or interrupting a water supply. The area is defined by projecting a 35° angle from the vertical from the outside of any area where the operator has extracted coal from an underground mine.

   Reclamation—Those actions taken to restore the area affected by underground mining activities as required by this chapter.

   Secretary—The Secretary of the Department of Environmental Resources of the Commonwealth of Pennsylvania.

   Sedimentation pond—A primary sediment control structure designed, constructed and maintained in accordance with this subchapter and Subchapter D (relating to structural requirements for impoundments), and including but not limited to a barrier, dam or excavated depression which detains water runoff to allow sediment to settle out. A sedimentation pond shall not include secondary sedimentation control structures, such as straw dikes, riprap, check dams, mulches, dugouts and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment, to the extent that the secondary sedimentation structures drain to a sedimentation pond.

   Soil survey—A field classification and laboratory analysis resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies and interprets the soils for use. Soil surveys shall meet the standards of the National Cooperative Soil Survey.

   Stratum (strata)—A section of geologic formation that consists throughout of approximately the same kind of rock material; a stratum may consist of an indefinite number of beds.

   Substrates—Inorganic sediments which are .05 millimeter in diameter or larger, and includes sands, granules, pebbles, cobbles or boulders, based on Wentworth’s Classification.

   Temporary diversion—A diversion of a stream or overland flow which is used during surface coal mining activities and not approved by the Department to remain after reclamation as part of the approved postmining land use.

   Underground development waste—Waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone or related materials that are excavated, moved and disposed of as part of the construction activities in preparing the mine for coal production.

   Underground mining—The extraction of coal in an underground mine.

   

   Underground mining activities—Includes the following:

     (i)   Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities, including hoist and ventilating ducts, areas used for the disposal and storage of waste and areas on which materials incident to underground mining operations are placed.

     (ii)   Underground operations such as underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.

     (iii)   Operation of a mine including preparatory work in connection with the opening and reopening of a mine, backfilling, sealing, and other closing procedures, postclosure mine pool maintenance and any other work done on land or water in connection with a mine.

   Underground mining operations—Underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.

   Water supply—An existing source of water used for domestic, commercial, industrial or recreational purposes or for agricultural uses, including use or consumption of water to maintain the health and productivity of animals used or to be used in agricultural production and the watering of lands on a periodic or permanent basis by a constructed or manufactured system in place on August 21, 1994, to provide irrigation for agricultural production of plants and crops at levels of productivity or yield historically experienced by the plants or crops within a particular geographic area, or which serves a public building or a noncommercial structure customarily used by the public including churches, schools and hospitals.

   Water table—The upper surface of a zone of saturation, where the body of groundwater is not confined by an overlying impermeable zone.

 (b)  When a term not defined in this chapter is used in this chapter, but is defined in Chapters 86—88 and 90 the definition in that chapter is applicable to this chapter.

   The provisions of this §  89.5 amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. §  1406.7); section 5 of The Clean Streams Law (35 P. S. §  691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b); 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).

   Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § §  1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § §  1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).

 (a)  This chapter sets forth requirements for conducting underground mining activities and coal preparation activities.

 (b)  As part of the application required by Chapter 86 (relating to surface and underground coal mining: general), the operator shall describe the coal preparation activities or underground mining activities by means of specific plans identified in this chapter. These plans shall be developed using, at a minimum, the information specified in this chapter and designed to meet the performance standards of this chapter and the requirements of the acts. Plans and information required by this chapter may be developed using modeling techniques, but the Department may require verification of a model. The plans shall be incorporated in the permit and implemented in accordance with the permit.

 (c)  The application and the supporting plans required by this section shall be submitted in a format specified by the Department including, but not limited to, forms, maps, cross sections and narrative descriptions.

 (d)  The development, design, implementation and approval of these plans does not relieve the operator of the responsibility to meet the performance standards of this chapter and the requirements of the acts.

   The provisions of this §  89.7 adopted 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 (148905) to (148906).

INFORMATION REQUIREMENTS

§ 89.11. General requirements.

 As required by Chapter 102 (relating to erosion and sediment control), the operator shall prepare and submit, as part of the application, an erosion and sedimentation control plan for all areas disturbed by earthmoving activities. The erosion and sedimentation control plan shall include, at a minimum, the information required by this subchapter, and shall be designed and implemented to achieve the performance standards set forth in this subchapter.

   The provisions of this §  89.11 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 requested by the Department, the erosion and sedimentation control plan shall contain a statement of the climatological factors that are representative of the proposed permit area, including the following:

   (1)  The average seasonal precipitation.

   (2)  The average direction and velocity of prevailing winds.

   (3)  Seasonal temperature ranges.

 (b)  The Department may request such additional data as deemed necessary to ensure compliance with the requirements of this chapter.

 The erosion and sedimentation control plan shall include an air pollution control plan which includes the following:

   (1)  A plan demonstrating compliance with fugitive dust control practices, as required under §  89.64 (relating to air resources protection), and, if applicable, how the requirements of Chapters 123 and 127 (relating to standards for contaminants; and construction, modification, reactivation and operation of sources) will be met.

   (2)  If required by the Department, air quality control monitoring to provide sufficient data to evaluate the effectiveness of the air pollution control plan.

 The erosion and sedimentation control plan shall address the construction, use and maintenance of roads, conveyors, rail systems and other transportation facilities within the proposed permit area.

   The provisions of this §  89.20 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; reserved July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

PERFORMANCE STANDARDS

§ 89.21. Erosion and sedimentation control.

 (a)  The standards of Chapter 102 (relating to erosion and sediment control) for designing erosion and sedimentation control measures and facilities apply, except when made more stringent by this chapter. If sedimentation ponds are not sized in accordance with §  102.13(d) (Reserved), then the calculated detention time and all supporting documentation and drawings used to establish the detention time shall be included in the permit application.

 (b)  All areas disturbed by earthmoving activities shall be permanently stabilized as soon as practicable after planned grade is achieved.

   The provisions of this §  89.21 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)  Before disturbance of areas affected by surface operations, topsoil and subsoils shall be separately removed and segregated from other material, unless use of substitute or supplemental materials for reclamation is approved by the Department.

 (b)  After removal, topsoil shall be stockpiled pending redistribution, provided that an alternative procedure may be approved by the Department on a case-by-case basis if the procedure provides equal or more protection for the topsoil.

 (c)  Topsoil shall, if possible, be removed from the areas to be affected by surface operations or major structures after the vegetative cover that would interfere with the use of the topsoil is cleared from portions of those areas that will be disturbed, but before any drilling for blasting, mining or other surface disturbance of surface lands.

 (d)  Selected overburden materials may be substituted for or used as a supplement to topsoil if the resulting soil medium is suitable for sustaining vegetation. Substituted or supplemented material shall be placed in compliance with the requirements for topsoil under §  89.85 (relating to topsoil use).

 (e)  Stockpiled materials shall be selectively placed and protected from wind and water erosion by an effective cover of quick-growing annual and perennial plants, or by other methods demonstrated to provide equal protection. Unless approved by the Department, stockpiled topsoil and other materials may not be moved until ready for use.

   The provisions of this §  89.22 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.

 Overland flow, shallow groundwater flow from undisturbed areas and flow in ephemeral streams shall, unless otherwise approved by the Department, be diverted away from disturbed areas by means of temporary or permanent diversions to minimize accelerated erosion, to reduce the volume of water to be treated, and to prevent contact with pollution-forming materials. The following requirements shall be met for all diversions:

   (1)  Temporary diversions shall be constructed to safely pass the peak runoff from a precipitation event with a 2-year recurrence interval, or a larger event as specified by the Department.

   (2)  Permanent diversions shall be constructed to safely pass the peak runoff from a precipitation event with a 10-year recurrence interval, or a larger event as specified by the Department. Permanent diversions shall be constructed with gently sloping banks that are stabilized.

   (3)  Using the best technology currently available, diversions shall be designed, constructed and maintained in a manner which prevents additional contributions of suspended solids to streamflow and runoff outside the disturbed area.

   (4)  A diversion may not be located in a way which will increase the potential for landslides.

   (5)  When no longer needed, each temporary diversion shall be removed and the affected land shall be regraded, have topsoil applied and be revegetated in accordance with § §  89.84—89.86 (relating to backfilling and grading; topsoil use; and revegetation).

   (6)  Diversion design shall incorporate the following:

     (i)   Channel linings to safely pass the design velocities.

     (ii)   Adequate freeboard.

     (iii)   Energy dissipators when necessary.

   The provisions of this §  89.23 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)  Sedimentation ponds, when required, shall be constructed in accordance with this section and Subchapter D (relating to structural requirements for impoundments) before disturbing the contributory drainage area. The ponds shall be located as near as possible to the area to be disturbed and out of perennial and intermittent stream channels, unless approved by the Department.

 (b)  A nonclogging dewatering device shall be installed to remove storm water. This device shall have a discharge rate to achieve and maintain the required detention time.

 (c)  Sedimentation ponds shall be operated and maintained until the disturbed area has been stabilized and revegetated and removal 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.

   The provisions of this §  89.24 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 §  89.24 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 (199208).

 Discharges from erosion and sedimentation control structures shall be controlled by energy dissipators, riprap channels or other devices, when necessary, to prevent accelerated 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.

   The provisions of this §  89.25 adopted July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.

 (a)  As used in this section, ‘‘road’’ means a surface right-of-way for purposes of travel by land vehicles used in coal exploration or underground mining activities. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side area, approaches, structures, ditches, surface and contiguous appendages necessary for the total structure. The term includes access and haul roads constructed, used, reconstructed, improved or maintained for use in coal exploration or underground mining activities, including use by coal-hauling vehicles leading to transfer, processing or storage areas. The term includes pioneer or construction roadways used for part of the road construction procedure and promptly replaced by a road located in the identical right-of-way as the pioneer or construction roadway.

 (b)  The operator shall design, construct or reconstruct, utilize and maintain roads and restore the area to meet the requirements of this section and to control or minimize erosion and sedimentation, air and water pollution, and damage to public or private property. 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.

 (c)  Using the best technology currently available, roads shall be designed, constructed and maintained so that they do not cause damage to fish, wildlife and related environmental values and do not cause additional contributions of suspended solids to streamflow or to runoff outside the permit area. The contributions may not be in excess of limitations of State or Federal law.

 (d)  Roads shall be removed and the affected land regraded and revegetated in accordance with §  89.90 (relating to restoration of roads) unless:

   (1)  Retention of the road is approved as part of the approved postmining land use or as being necessary to control erosion adequately.

   (2)  The necessary maintenance is assured.

   (3)  Drainage is controlled according to this subchapter.

 (e)  The design and construction or reconstruction of roads shall:

   (1)  Incorporate recognized engineering standards for environmental protection, mobility, safety and travel efficiency, based on geometric criteria appropriate for the planned duration of use, the anticipated volume of traffic and the weight and speed of vehicles to be used. 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.

   (2)  Include a drainage system that is compatible with the natural drainage system, structurally stable and 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 sloped or crowned road surface, cross drains or culverts, stabilized ditches, erosion-resistant surfacing, sediment traps, and other appropriate sediment control measures.

   (3)  Be prepared by or under the direction of, and certified by a qualified registered professional engineer or qualified registered professional land surveyor that the roads have been constructed or reconstructed as designed in accordance with the approved plan.

 (f)  Location of roads shall be as follows:

   (1)  Roads shall be located, insofar as possible, on ridges or on the most stable available slopes to minimize erosion.

   (2)  No part of any road shall be located in the channel of an intermittent or perennial stream except in accordance with §  86.102 (relating to areas where mining is prohibited or limited).

   (3)  Stream fords are prohibited unless they are specifically approved by the Department as temporary routes during periods of construction. The fords may not adversely affect stream sedimentation or fish, wildlife or related environmental values. Other stream crossings shall be made using bridges, culverts or other structures designed, constructed and maintained in accordance with recognized engineering standards and Chapter 105 (relating to dam safety and waterway management).

   (4)  Roads shall be located to prevent downstream sedimentation and flooding.

 (g)  Maintenance of roads shall be as follows:

   (1)  Roads shall be maintained so that the required or approved design criteria are met throughout the life of the facility, including surface and shoulders, parking, side areas, approach structures, erosion control devices, cut-and-fill sections and traffic control devices necessary for safe and efficient utilization.

   (2)  Road maintenance shall include basic custodial care as required to protect the road investment and to prevent damage to adjacent resources. This includes maintenance to control dust, erosion, repair of structures and drainage systems, removal of rocks and debris, replacement of surface and restoration of the road.

   (3)  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.

   The provisions of this §  89.26 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 June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial pages (158995) to (158997).

   This section cited in 25 Pa. Code §  89.173 (relating to performance standards).