A person who conducts coal refuse disposal activities shall comply with the performance standards and design requirements of this subchapter, except as follows:

   (1)  Disposal of coal refuse in an active surface mine shall comply with the performance standards set forth in Chapter 87 Subchapter D (relating to surface coal mines: minimum requirements for operation and reclamation plan) and § §  90.125 and 90.128 (relating to coal refuse disposal: construction requirements; and coal refuse disposal: active surface mines).

   (2)  Disposal of coal refuse in an abandoned or active underground coal mine shall comply with the requirements of Chapter 89 (relating to underground mining of coal and coal preparation facilities).

 (a)  Specifications. Signs and markers shall:

   (1)  Be posted and maintained during the duration of the coal refuse disposal activities to which they pertain, and removed upon completion.

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

   (3)  Be made of durable material.

   (4)  Conform to local zoning ordinances or codes.

 (b)  Coal refuse disposal facility and permit identification signs. Requirements for coal refuse disposal facility and permit identification signs shall be as follows:

   (1)  Identification signs shall be displayed at each point of access from public roads to the area where coal refuse disposal activities are permitted.

   (2)  Signs shall show the name, business address and telephone number of the operator and the identification number of the current permits authorizing coal refuse disposal activities.

   (3)  Signs shall be retained and maintained until after the release of all bonds for the permit area.

 (c)  Perimeter markers. The operator shall clearly mark the perimeter of the areas to be affected prior to initial coal refuse disposal activities.

 (d)  Buffer zone markers. 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)  Topsoil markers. When topsoil or other vegetation-supporting material is segregated and stockpiled as required under §  90.98 (relating to topsoil: storage), the stockpiled material shall be clearly marked.

 (f)  Blasting signs. If blasting is conducted as part of the operation, the person who conducts the coal refuse disposal activities shall post and maintain signs and markers as required by § §  87.124—87.127 and 87.129.

 (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 §  90.92 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).

 (a)  An 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 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, livestock, fish and wildlife and machinery in the permit and adjacent areas.

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

 (b)  If these openings are uncovered or exposed by coal refuse disposal 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 §  90.115 (relating to hydrologic balance: groundwater 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, unless one of the following happens:

   (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 §  90.147(b) (relating to support facilities and utility installations) are implemented.

 (f)  All exploration holes, other drill or boreholes, wells—other than gas or oil wells—and other exposed underground openings which have been identified in the approved permit application for use to return waste to an underground mine as part of an operation approved under Chapter 89 (relating to underground mining of coal and coal preparation facilities), or to be used to monitor groundwater conditions, shall be protected by temporary seals, barricades, fences or other protective devices approved by the Department. These devices shall be periodically inspected and maintained in good operating condition during the coal refuse disposal activities.

 All topsoil and, if necessary, suitable subsoil shall be separately removed, segregated, conserved and redistributed on all areas affected by the coal refuse disposal activities.

   The provisions of this §  90.96 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, coal refuse disposal or other surface disturbance. Any vegetation 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 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 of topsoil, subsoil and unconsolidated materials shall be removed, segregated, conserved and replaced as the final surface soil layer. If the topsoil and all unconsolidated material measures less than 12 inches (30.48 centimeters), all the topsoil, subsoil and unconsolidated material shall be removed and the mixture segregated and redistributed as the final surface soil layer.

 (d)  On areas that have been previously affected by mining or coal refuse disposal activities and 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 the Department determines that either of these is necessary or desirable to ensure soil productivity consistent with the approved postdisposal land use.

 (f)  When approved by the Department, in writing, other material may be substituted or used as a supplement to topsoil if the operator demonstrates that the resulting soil medium is equal 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 §  90.97 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 (207954) to (207955).

 (a)  Topsoil and other materials removed under §  90.97 (relating to topsoil: removal) shall be stockpiled only when it is impractical to promptly redistribute the 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 until required for redistribution on the regraded area or otherwise disturbed by the coal refuse disposal activities.

 (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 in writing to provide equal protection.

   The provisions of this §  90.98 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 postdisposal 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 §  90.99 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.

 (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 postdisposal land use and meets the revegetation requirements of § §  90.151—90.157, 90.159 and 90.160.

 (b)  All soil tests shall be performed using standard methods approved by 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 or an equivalent material, and shall contain sufficient calcium and magnesium to be equivalent to not less than 89% calcium carbonate. An alternate 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 Articles VII—IX (relating to hazardous waste management; municipal waste management; and residual waste management) are met.

   The provisions of this §  90.100 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)  Coal refuse disposal 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 preventive, remedial or monitoring measures to assure that material damage to the hydrologic balance outside the permit area is prevented.

 (b)  Coal refuse disposal activities shall be planned and conducted to prevent pollution of groundwater and surface water and prevent, to the maximum extent possible, changes to the water quantity, depth to groundwater and location of surface water drainage channels so that the approved postdisposal land use of the permit is not adversely affected.

 (c)  The treatment requirements and effluent limitations established under §  90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices) may not be violated.

 (d)  Operations shall be conducted to prevent water pollution and, when necessary, treatment methods shall be used.

 (e)  A person who conducts coal refuse disposal activities shall conduct the disposal 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 §  90.102 are achieved and maintained.

 (a)  A person may not allow a discharge of water from an area disturbed by coal refuse disposal activities, including areas disturbed by mineral preparation, processing or handling facilities which exceeds the following groups of effluent criteria. The effluent imitations are to 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 The 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 are as follows:

   (1)  The discharges specified in this subsection shall comply with the effluent limitations set forth as follows:

   (2)   To be entitled to the effluent limitations in Group B or Group C, the permittee shall comply with the procedures in §  90.103 (relating to precipitation event exemption).

 (c)  Exceptions to effluent limitations are as follows:

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

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

     (ii)   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 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 of 1977, the act of December 27, 1977 (Pub. L. No. 95-217, 91 Stat. 1566-1609), in which case the Department may grant a variance, in writing, from the limitations 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)  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 any 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)  Additional requirements. In addition to the requirements of subsections (a)—(e), the discharge of water from coal refuse disposal activities shall comply with this title, including Chapters 91—93, 95, 97 (reserved) and 102.

 (g)  Abatement plan. If water from a coal refuse disposal area is discharged into a mine for treatment with the drainage from the mine, that mine may not be closed or sealed until an approval for the abatement of the discharges from the coal refuse disposal area is granted by the Department. The abatement plan, including necessary permit applications, shall be submitted to the Department at least 18 months prior to the anticipated closure date of the mine to assure that necessary facilities and measures will be implemented prior to the mine closure or sealing.

   The provisions of this §  90.102 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 §  90.102 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; corrected August 16, 1991, effective July 27, 1991, 21 Pa.B. 3697; 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 (237209) to (237213).

 (a)  To establish the alternative effluent limitations of Group B or C in §  90.102(a) (relating to hydrologic balance: water quality standards, effluent limitations and best management practices), a permittee shall demonstrate to the Department’s satisfaction that a precipitation event has occurred, under the procedures in this section.

   (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 specified in §  90.102, unless the permit specifies a more stringent water quality based effluent limitation, in which case no exemption is 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 of Group C in §  90.102(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 §  90.102, unless the permit specifies a more stringent water quality based effluent limitation, in which case no exemption is 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 of Group B in §  90.102(a).

 (b)  The 1-year and 10-year 24-hour rainfall events for specific areas in this Commonwealth are listed as follows:

 (c)  For the coal refuse disposal permittee to demonstrate that the event listed in subsection (b) has for his mine area been exceeded, or that dry weather flow conditions did not exist, the permittee shall comply with paragraph (1), (2) or (3).

   (1)  The permittee shall:

     (i)   Collect 24-hour rainfall information from official United States Weather Bureau Stations within a 25-mile distance—radius—of the site.

     (ii)   Calculate the estimated rainfall event for the site by appropriate interpolation of the data collected under this paragraph. Appropriate interpolation shall be accomplished by:

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

       (B)   Linear interpolation between the isohytes.

   (2)  Complying with the following:

     (i)   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 event for which the exemption is sought and shall be secure to prevent tampering and acts of third parties.

     (ii)   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 1-year or 10-year, 24-hour precipitation event specified for the mine area in subsection (b).

   (3)  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 precipitation event for which the exemption is being sought, and shall guarantee the integrity of the information collected.

 (d)  When 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 is not entitled to claim a greater than 1-year or 10-year, 24-hour precipitation event storm exemption unless the permittee has fully complied with subsections (c) and (d).

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

   The provisions of this §  90.103 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 (149032) to (149034).

 (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 ditches.

 (b)  Diversions shall be designed, constructed and maintained using current engineering practices to pass safely the peak runoff from a precipitation event within a 2-year occurrence interval for temporary diversions or a 10-year recurrence interval for permanent diversions. 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)  Diversions shall be vegetated or otherwise stabilized to prevent erosion and 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, nontoxic-forming rock that will not slake in water 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 coal refuse 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 §  90.151 (relating to revegetation: general requirements).

 (h)  Diversions may not be constructed or operated to divert water into underground mines without the approval of the Department. The discharges must meet the requirements of Chapter 89 (relating to underground mining of coal and coal preparation facilities).

   The provisions of this §  90.104 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.

 (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 coal refuse disposal activities, 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).

 (b)  When stream flow 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 stream flow 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 diversion only when they are stable and will require infrequent maintenance.

   (2)  The combination of channel, bank and flood plain configurations shall be adequate to prevent a flooding potential greater than that created by the natural condition 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, temporary stream channel diversions shall be removed and the affected land regraded and revegetated, in accordance with § §  90.150—90.157, 90.159 and 90.160. 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 release the person who conducts the coal refuse disposal activities from maintenance of a water treatment facility otherwise required under this chapter, and the erosion and sedimentation control requirements of §  90.106 (relating to hydrologic balance: erosion and sedimentation control).

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

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

   (2)  Restore the horizontal alignment of the stream to a condition compatible with the identified 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 predisposal stream channel characteristics.

   The provisions of this §  90.105 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; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316. Immediately preceding text appears at serial pages (149035) to (149037).

 (a)  Appropriate erosion and 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 stream flow or to runoff outside the affected area.

   (2)  Meet the treatment requirements and effluent limitations of §  90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).

   (3)  Minimize erosion to the extent possible.

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

 (b)  All areas disturbed by coal refuse disposal activities shall be permanently stabilized as soon as practicable.

   The provisions of this §  90.106 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 (207965).

 (a)  Facilities and measures for treating discharges from disturbed areas shall be designed, constructed and maintained for the runoff, at a minimum, 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 failure warning devices and backup systems as necessary to insure compliance with §  90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).

 (c)  The design, construction and maintenance of a treatment facility shall not relieve an operator of his responsibility for complying with the applicable treatment requirements and effluent limitations established under §  90.102.

 (a)  Surface drainage from the disturbed area, including disturbed areas that 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 coal refuse disposal activities demonstrates to the satisfaction of the Department that sediment ponds are not necessary to meet the effluent limitations under §  90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).

 (b)  Sedimentation ponds shall be constructed in accordance with this section and § §  90.111 and 90.112 (relating to hydrologic balance: impoundments; and 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. The ponds shall be located as near as possible to the area to be disturbed and out of perennial and intermittent streams. Ponds may be located in intermittent streams provided the requirements of Chapter 105 (relating to dam safety and waterway management) are met.

 (c)  Sedimentation ponds may not be removed until the disturbed area has been stabilized and revegetated and the Department approves the removal of the ponds. 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 and sediment control).

 (e)  The water storage resulting from inflow shall be removed by a nonclogging dewatering device approved by the Department. The dewatering device may not be located at a lower elevation than the maximum elevation of the sediment storage volume. The device shall have a discharge rate to achieve and maintain the required detention time.

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

 (g)  The design, construction and maintenance of a sediment pond in accordance with this section does not relieve the person who conducts coal refuse disposal activities of the responsibility for complying with the applicable treatment requirements and effluent limitations established under §  90.102.

 (h)  There may be no discharge through the emergency spillway during the passage of the runoff resulting from the 10-year, 24-hour precipitation events or lesser events through the sedimentation pond.

 (i)  The elevation of the crest of the emergency spillway shall be a minimum of 1.0 foot above the crest of the principal spillway.

 (j)  When the sedimentation pond is to be removed, the affected land shall be regraded and revegetated in accordance with §  90.151—90.157, 90.159 and 90.160.

   The provisions of this §  90.108 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 §  90.108 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 (176082) and (180937).

 Discharge from dams, ponds, embankments, impoundments and diversions shall be controlled by emergency dissipators, riprap, channels or other devices 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.

   The provisions of this §  90.109 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 may not degrade the quality of the receiving waters to less than the water quality standards established under §  90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).

   (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 may not result in the 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 shall be adequate for its intended purposes.

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

   (7)  Impoundments which are constructed of or used to impound coal refuse shall be developed into fills meeting the construction requirements of §  90.122 (relating to coal refuse disposal).

   The provisions of this §  90.111 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 §  90.111 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; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial page (180938).

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

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

     (i)   The contributory drainage area exceeds 100 acres.

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

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

   (2)  Structures used for the storage of water not located on a watercourse and which have no contributory drainage where the greatest depth of water, at 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,’’ or United States Soil Conservation Service’s Technical Release No. 60, Earth Dams and Reservoirs, whichever is applicable. The standards 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 meet the following requirements:

   (1)  The detailed design plan for a structure shall be prepared by and certified by a qualified registered professional engineer. Each impoundment shall be certified that the impoundment has been constructed and is being maintained as designed in accordance with the applicable performance standards.

   (2)  Each pond shall be inspected once every 3 months for structural weakness, erosion and other hazardous conditions. The person who conducts the coal refuse disposal activities 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.

   (3)  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.

   (4)  Plans for enlargement, reduction in size, reconstruction or other modification 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 plans shall be approved by the Department 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 probable conditions of operation and be designed and constructed to achieve a static safety factor of 1.5 or a 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 necessary laboratory testing of foundation material to determine the design requirements for foundation stability.

 (d)  An impoundment shall be inspected during construction and certified after construction, and annually thereafter, by a qualified registered professional engineer until removal of the structure. Certification reports shall include monitoring and instrumentation results and a statement regarding the condition of impoundment.

 (e)  An 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 §  90.112 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 §  90.112 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 (180938) to (180941).

 (a)  In addition to the requirements of §  90.112 (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 requirement of this section.

 (b)  Waste may be used in the construction of dams and embankments if it has been demonstrated to, and approved by, the Department that the stability of such a structure conforms with the requirements of this section and the use of the waste material may not have a detrimental effect on downstream water quality or the environment.

 (c)  The design freeboard between the lowest point on the embankment crest and the maximum water elevation shall be at least 3 feet. The maximum water elevation shall be that determined by the freeboard hydrograph criteria contained in the United States Soil Conservation Service’s Technical Release No. 60, ‘‘Earth Dams and Reservoirs.’’ The standards contained therein are hereby incorporated by reference.

 (d)  The dam and embankment shall have a minimum safety factor of 1.5 for the partial pool with steady seepage saturation conditions, and the seismic safety factor shall be at least 1.2.

 (e)  The dam or embankment foundation and abutment shall be designed to be stable under all conditions of construction and operation of the impoundment. Sufficient foundation investigations and laboratory testing shall be performed to determine the safety factors of the dam and embankment for all loading conditions appearing in subsection (d) and for all increments of construction.

 (f)  Spillways and outlet works shall be designed to provide adequate protection against erosion and corrosion. Inlets shall be protected against blockage.

 (g)  Dams and embankments constructed of or impounding waste materials shall be designed so that at least 90% of the water stored during the design precipitation event shall be removed within a 10-day period.

 (h)  Before coal processing waste is placed at a dam or embankment site:

   (1)  Trees, shrubs, grasses and other organic material shall be cleared and grubbed for a distance of 50 feet from the coal refuse disposal pile, bank or dam within the site, and combustibles shall be removed and stockpiled in accordance with this subchapter.

   (2)  Surface drainage that may cause erosion to the embankment area or the embankment features, whether during construction or after completion, shall be diverted away from the embankment by diversion ditches that comply with the requirements of §  90.104 and 90.105 (relating to hydrologic balance: diversions; and stream channel diversions). Diversions that are designed to divert drainage from the upstream area away from the impoundment areas shall be designed to carry the peak runoff from a 100-year, 24-hour precipitation event. The diversion shall be maintained to prevent blockage, and the discharge shall be in accordance with §  90.109 (relating to hydrologic balance: discharge structures). Sediment control measures shall be provided at the discharge of each diversion ditch before entry into natural watercourses in accordance with § §  90.105 and 90.108 (relating to stream channel diversions; and hydrologic balance: sedimentation ponds).

 (i)  Impoundments constructed of coal processing wastes or used to impound coal processing wastes may not be retained permanently as part of the approved postmining land use, unless these structures are developed into fills meeting the construction requirements of §  90.122 (relating to coal refuse disposal).

   The provisions of this §  90.113 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 §  90.113 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 (180941) to (180942).

 (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 coal refuse disposal activities on the recharge capacity of reclaimed lands and on the quantity and quality of groundwater in the permit and adjacent areas.

 (b)  When coal refuse disposal activities may affect the groundwater systems which serve as aquifers which 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 that are adequate to reflect changes in groundwater quality and quantity resulting from those activities. Monitoring shall be adequate to plan for modification of coal refuse disposal activities, if necessary, to prevent, to the maximum extent possible, 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 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 coal refuse disposal activities shall conduct additional hydrologic tests, as specified and approved by the Department, including but not limited to drilling, infiltration tests, chemical and mineralogical analysis of overburden and spoil, and aquifer tests, and shall submit the results to the Department to demonstrate protection of the groundwater.

 (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 §  90.115 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 §  90.115 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; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821. Immediately preceding text appears at serial page (180943).

 (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 §  90.35 (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 §  90.116 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 §  90.116 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 (180943) to (180944) and (159101).

 An operator who conducts coal refuse disposal and adversely affects a water supply by contamination, pollution, diminution or interruption shall comply with §  87.119 (relating to water rights and replacement).

 Discharges from coal refuse disposal areas into underground mine workings must comply with the requirements of Chapter 89 (relating to underground mining of coal and coal preparation facilities), including applicable permit requirement.

 At the completion of coal refuse disposal activities, the person who conducts the coal refuse disposal activities shall renovate the 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. Impoundments constructed of coal refuse or used to impound coal refuse shall be developed into fills meeting the construction requirements of §  90.122 (relating to coal refuse disposal), or removed.

   The provisions of this §  90.120 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 §  90.120 adopted 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 (159101) to (159102).

 (a)  Coal refuse shall be transported and placed in designated disposal areas approved by the Department for this purpose. These areas shall be within the permit area. The coal refuse disposal area shall be designed, constructed and maintained to ensure:

   (1)  The leachate and surface runoff from the permit area will not degrade surface water or groundwater or exceed the effluent limitations of §  90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).

   (2)  Prevention of combustion.

   (3)  Prevention of public health hazards.

   (4)  Stability of the fill.

   (5)  The land mass designated as the coal refuse 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 qualified registered professional engineer, and approved by the Department.

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

 (d)  The coal refuse disposal fill shall be designed to attain a minimum long-term static factor of safety of 1.5 and a minimum seismic factor of safety of 1.2, based upon data obtained from subsurface exploration, geotechnical testing, foundation design, fill design and accepted engineering analyses.

 (e)  When the average slope of coal refuse disposal area exceeds 1v:2.8h-36%, or lesser slopes as may be designated by the Department based on local conditions, key way cuts, or excavation into stable bedrock or bedrock toe buttresses shall be constructed to stabilize the fill. When the toe of the fill rests on a downslope, stability analysis shall be performed in accordance with §  90.39 (relating to ponds, impoundments, banks, dams, embankments, piles and fills) to determine the size of rock toe buttresses and key way cuts.

 (f)  If the disposal area contains springs, natural or manmade watercourses, or wet-weather seeps, the Department may approve an underdrain/subdrainage system, consisting of durable rock or other materials, designed and placed in a manner that prevents infiltration of the water into the fill material and ensures continued free drainage from the wet areas.

 (g)  The disposal area shall be provided with a system to prevent adverse impacts to the surface water and groundwater. The system shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit and shall function to prevent adverse impacts to surface water and groundwater.

 (h)  When a phase of the coal refuse disposal area reaches capacity, the operator shall install a system to prevent precipitation from coming in contact with the coal refuse in the completed phase.

   (1)  The system shall be constructed in accordance with design schematics, test results, descriptions, plans, maps, profiles or cross-sections approved in the permit.

   (2)  During normal coal refuse disposal, the system is not required to prevent precipitation from coming in contact with the coal refuse being placed in phases of the operation that have not reached capacity.

   (3)  The system shall be designed to allow for revegetation of the site in accordance with the standard of success under §  90.159 (relating to revegetation: standards for successful revegetation) and for the prevention of erosion.

   (4)  If the operator temporarily ceases operation of the coal refuse disposal area for a period in excess of 90 days (unless the Department, for reasons of labor strike or business necessity, approves a longer period not to exceed 1 year) or when the operation permanently ceases, the operator shall install the system for preventing precipitation from contacting the coal refuse.

 (i)  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 continued 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-forming or nontoxic-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 flake in water.

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

 (j)  The final configuration of the fill shall be suitable for the post disposal land use approved under §  90.165 (relating to prime farmland: revegetation), except that no depression or impoundment may be allowed on the completed fill. New coal refuse disposal piles and area of piles active since May 17, 1973, shall blend into the local surroundings. Unless otherwise approved by the Department, the fill may not be designed to exceed the approximate elevation of the surrounding ridgeline.

 (k)  The maximum overall completed slope of the coal refuse disposal pile measured from toe of the fill to crest of upper terrace may not exceed 33% or 18 degrees.

 (l)  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 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.

 (m)  Terraces may be utilized to control erosion, enhance stability, or for roads included in postmining land use.

   (1)  The slope of the outslope between terraces may not exceed lv:2h—50%. The vertical distance between terraces may not exceed 50 feet.

   (2)  To control surface runoff, each terrace bench will be a minimum of 20 feet wide, shall be graded to a slope of lv:20h—5.0% toward the embankment. Runoff shall be collected by a ditch along the intersection of each terrace bank and the toe of the next higher outslope.

   (3)  Terrace ditches shall have a maximum 5.0% slope toward the channels specified in subsection (n) unless steeper slopes are necessary in conjunction with approved roads.

 (n)  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 designated to pass safely the peak runoff from a 100-year precipitation event. Diversion design shall comply with §  90.104 (relating to hydrologic balance: diversions).

 (o)  Surface water runoff from the fill shall be diverted off the fill to properly designated channels which will pass safely the peak runoff from a 100-year precipitation event. Diversion design shall comply with §  90.104 and §  90.105 (relating to stream channel diversions).

 (p)  Slope protection shall be provided to minimize surface erosion at the site. Disturbed areas, including diversion ditches that are not riprapped, shall be vegetated upon completion of construction.

 (q)  Coal refuse shall be hauled or conveyed and placed in a controlled manner and concurrently compacted as approved by the Department in lifts no greater than 2 feet, or less, as required or approved 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.

 (r)  Vegetative and organic materials shall be removed from the area where coal refuse is disposed of, and for a distance of 50 feet from the perimeter of the area where coal refuse is disposed, the topsoil shall be removed, segregated and stored or replaced as provided in § §  90.96—90.100. If approved by the Department, organic material may be used a mulch or may be included in the topsoil to control erosion, promote growth of vegetation or increase the moisture retention of the soil.

   The provisions of this §  90.122 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 §  90.122 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 July 13, 2001, effective July 14, 2001, 31 Pa.B. 3735. Immediately preceding text appears at serial pages (207976) to (207979).

 (a)  The coal refuse disposal area shall be inspected for stability by a qualified registered engineer or other qualified specialist under the direction of the qualified registered professional engineer at least quarterly throughout construction and during the following critical construction periods: removal of organic material and topsoil; placement of under- drain and protective filter systems; installation of surface drainage systems; placement and compaction of fill materials; and revegetation. The professional engineer or other qualified professional specialist shall be experienced in the construction of earth and rock fill embankments. The registered engineer or other qualified professional specialist shall provide to the Department a certified report within 2 weeks after each inspection that the fill has been constructed as specified in the design approved by the Department. A copy of the report shall be retained at the coal refuse disposal site.

 (b)  If an inspection discloses that potential hazard exists, the Department shall be informed promptly of the findings and the actions to abate the potential hazard.

 (c)  If an inspection discloses that an imminent danger exists, the Department shall be informed promptly of the findings and of the emergency procedures formulated for public protection and remedial action. The permittee shall immediately notify the appropriate emergency agencies and residents immediately downstream of the affected area.

 (d)  The certified report on underdrains and protective filter systems required under subsection (a) shall include color photographs taken during and after construction, but before underdrains are covered with coal refuse. If the underdrain system 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.

   The provisions of this §  90.124 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. Immediately preceding text appears at serial pages (149049) to (149050).

 (a)  The coal refuse disposal area shall be constructed in compliance with this section and § §  90.122 and 90.124 (relating to coal refuse disposal; and coal refuse disposal: site inspection), except to the extent the requirements of those sections are specifically varied in this section.

 (b)  The coal refuse shall be:

   (1)  Spread in horizontal layers no more than 24 inches in thickness.

   (2)  Compacted to attain a minimum of 90% of the maximum dry density as determined by the Modified Proctor Test or 95% of the maximum dry density as determined by the Standard Proctor Test.

 (c)  Concurrently with construction of the site as each portion of the site is developed and reaches final configuration and elevation, that portion of the site shall be covered with a final layer of nontoxic, noncombustible material and soil suitable for revegetation within 60 days and revegetated under § §  90.151—90.157, 90.159 and 90.160. The minimum combined thickness of the nontoxic, noncombustible material and soil shall be 4 feet except that this requirement may be waived for coal refuse disposal areas permitted prior to July 27, 1991 if the
requirements of § §  90.150—90.157, 90.159—90.165 can be attained; or when the permittee has demonstrated that a lesser combined thickness is as effective as 4 feet of combined thickness in meeting the performance standards of this chapter.

 (d)  The Department may approve other compaction requirements if the requirements of §  90.122 are met.

   The provisions of this §  90.125 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 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. Immediately preceding text appears at serial pages (149050) to (149051).

 (a)  The person conducting the coal refuse disposal activities shall take immediate action to extinguish any fires or hot spots in accordance with a plan approved by the Department and the Mine Safety and Health Administration. The plan shall contain, as a minimum, provisions to ensure that only those persons authorized by the operator, and who have an understanding of the procedure to be used, shall be involved in the extinguishing operations.

 (b)  Coal refuse may not be deposited on or near any portion of a coal refuse disposal area known to be burning.

   The provisions of this §  90.126 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.

 The person conducting the disposal of coal refuse in underground mines shall meet the requirements of Chapter 89 (relating to underground mining of coal and coal preparation facilities).

   The provisions of this §  90.127 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.

 (a)  The person disposing of coal refuse in active surface mines shall meet the requirements of Chapter 87 (relating to surface mining of coal) and §  90.125 (relating to coal refuse disposal: construction requirements).

 (b)  The Department will limit the volume or amount of coal refuse disposal in an active surface mine based on achieving the approximate original contour and insuring pollution will not occur.

 (c)  The coal refuse shall be disposed at a minimum of 10 feet above the base of the pit floor or the seasonal high water table whichever is higher.

 (d)  The coal refuse shall be spread and compacted in 2 foot layers and may not exceed the volume as set forth in subsection (b).

 (e)  The coal refuse may not be deposited against an exposed coal seam. An exposed coal seam shall be covered by nontoxic, nonacid and noncombustible spoil at a minimum of 2.5 times the thickness of the coal.

 (f)  The Department may require treatment of the coal refuse.

   The provisions of this §  90.128 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 (149052) to (149053).

 (a)  The volume of coal refuse to be disposed in the pit may not exceed in thickness 60% of the height of the highwall, if the applicant can demonstrate the overburden and coal refuse can be graded to approximate original contours and the disposal of the coal refuse will not create a water pollution problem.

 (b)  The coal refuse shall be disposed at a minimum of 10 feet above the base of the pit floor or the seasonal high water table whichever is higher.

 (c)  The coal refuse shall be spread and compacted in 2-foot layers, meet the requirements of §  90.125 (relating to coal refuse disposal: construction requirements) and may not exceed the volume set forth in subsection (a).

 (d)  The coal refuse may not be deposited against an exposed coal seam. An exposed coal seam shall be covered by nonacid, nontoxic and noncombustible spoil at a minimum of 2.5 times the thickness of the coal.

 (e)  The Department may require treatment of the coal refuse.

   The provisions of this §  90.129 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. Immediately preceding text appears at serial page (149053).

 Dams and embankments constructed of coal refuse or intended to impound coal refuse, whether they were completed before adoption of the regulatory program or are intended to be completed thereafter, shall meet the requirements of § §  90.111—90.113, 90.120, 90.122, 90.124 and 90.125.

   The provisions of this §  90.130 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 §  90.130 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 (180945) to (180946).

 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 and the regulations promulgated thereunder. Storage shall be of a type that fires are prevented and that the area remains stable and suitable for reclamation and revegetation. Waste materials with low ignition points including, but not limited to, wood, cloth, waste paper, oil, grease and garbage may not be deposited on or near a coal refuse disposal pile.

   The provisions of this §  90.133 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).

 (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; flooding; air and water pollution; damage to fish and wildlife or their habitat; 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 §  90.140 (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 road or access roads 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). 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, 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 as required by §  90.106 (relating to hydrologic balance: erosion and sedimentation control).

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

 (e)  Prior to the construction of the road, all 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 when the road is within the confines of a coal refuse disposal or reprocessing area, and the effluent meets the requirements of §  90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).

 (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 §  90.134 amended under section 4.2(a) of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b(a)); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. §  30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  90.134 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 (244302) to (244303).

 Unless the Department approves retention of a road as suitable for the approved postdisposal land use in accordance with §  90.166 (relating to postdisposal land use), as soon as practicable after the road is no longer needed for operations, reclamation or monitoring:

   (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 § §  90.96—90.100 and revegetated in accordance with §  90.151 (relating to revegetation: general requirements).

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

   The provisions of this §  90.140 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 (207986) to (207987).

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

   (1)  Prevent, using the best technology currently available:

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

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

   (2)  Control and prevent, to the maximum extent possible, diminution of water quantity and prevent pollution.

   (3)  Control and prevent, to the maximum extent possible, erosion and siltation.

   (4)  Control and prevent air pollution.

   (5)  Prevent damage to public or private property.

   The provisions of this §  90.146 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; corrected March 1, 1985, effective November 13, 1982, 15 Pa.B. 779. Immediately preceding text appears at serial page (92806).

 (a)  Support facilities required for, or used incidentally to, the operation of the coal refuse disposal area, including, but not limited to, buildings, coal loading facilities at or near the coal refuse disposal 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 coal refuse disposal 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.

 Blasting, if required, shall be conducted in accordance with § §  87.124—87.127 and 87.129.

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

   (1)  If processing facilities are to be used at the coal refuse disposal 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 §  90.149 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.

 (a)  A person conducting coal refuse disposal 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 practical.

   (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 coal refuse disposal activities, unless approved by the Department of Agriculture.

   (6)  Do the following, if fish and wildlife habitat is to be postdisposal land use, in addition to the requirements of § §  90.151—90.157, 90.159 and 90.160:

     (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 groupings to maximize benefit to fish and wildlife. Plants shall 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 postdisposal 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 postdisposal 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 coal refuse disposal 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)  Coal refuse disposal activities 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)  Coal refuse disposal activities may not be conducted which are 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 are likely to result in the destruction or adverse modification of designated critical habitats of the species in violation of the Endangered Species Act of 1973, 16 U.S.C.A. § §  1531—1544.

   The provisions of this §  90.150 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 §  90.150 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; 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 (207989) to (207991).

 (a)  Vegetation shall be established on all land affected by coal refuse disposal 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 postdisposal 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 postdisposal land use when compared with the utility of naturally occurring vegetation during each season of the year. For areas designated as prime farmland, the requirements of § §  90.161—90.165 shall apply.

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

 (d)  All revegetation shall be completed in compliance with the plans submitted under §  90.34 (relating to reclamation: postdisposal land use) 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 postdisposal land use.

   The provisions of this §  90.151 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.

 (a)  Disturbed areas shall be seeded and planted when weather and planting conditions permit, but the seeding and planting of disturbed areas shall be conducted no later than the first normal period for favorable planting after 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 effectively control erosion, the disturbed area shall be seeded and planted as contemporaneously as practicable with the completion of grading with a temporary cover of small grain grasses or legumes, until a permanent cover is established.

   The provisions of this §  90.152 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.

 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 postdisposal 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 §  90.34 (relating to reclamation: postdisposal land use).

   (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 §  90.153 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.

 When the approved postdisposal land use is cropland, the planting of agriculture crops normally grown in the general locality of the permit area shall satisfy the revegetation requirements of §  90.166 (relating to postdisposal land use). 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 §  90.154 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 §  90.159 (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 postdisposal land use is wildlife habitat, unless alternative plans are approved 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 of the Fish and Boat Commission and Game Commission.

   The provisions of this §  90.155 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 (149064) to (149065).

 (a)  The soil surface shall be prepared by disking or harrowing. If soil conditions or steep slopes prohibit the 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 3 inches prior to seeding.

   The provisions of this §  90.156 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)  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. With the exception of outslopes of terrace contours, dams or embankments, fills between terrace benches or any other approved slopes which exceed 36%, 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 postdisposal land use is for agricultural crops.

   (3)  When annual grasses or small grains can 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 §  90.159 (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 §  90.157 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 postdisposal land use is cropland or as provided in subsection (c), the following apply:

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

   (2)  The approved standard 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 disposal 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 this section. Productivity or yield shall be considered equal if production or yield is at least 90% of the approved standard.

 (b)  When the approved postdisposal land use is other than cropland, the following apply:

   (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 coal refuse disposal activities. The Department will not approve less than a minimum of 70% ground cover of permanent plant species with not more than 1.0% 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 subsection 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 postdisposal 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 postdisposal land use is wildlife habitat, the requirements of §  90.155 (relating to revegetation: species) 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 coal refuse disposal activities. The Department will not approve stocking of less than 400 woody plants per acre.

   (3)  The following shall apply for purposes of measuring the stocking standards for woody species:

     (i)   Root crown or root sprouts over 1 foot in height shall count as one toward meeting the stocking requirements. When multiple stems occur, only the tallest stem shall be counted.

     (ii)   A tree or shrub shall count as one toward meeting the stocking requirements if the tree or shrub has been in place at least two growing seasons and is alive and healthy with at least 1/3 of its length in live crown.

   (4)  The percent ground cover of the permit area shall meet the standards of paragraph (2) for a minimum of the last 2 consecutive years of the 5-year period of responsibility, and the 5-year period of responsibility shall commence after the last year of augmented seeding and fertilizing.

   (5)  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 the vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of measurement.

 (c)  When the approved postdisposal 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 §  90.159 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 June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial pages (149066) to (149068).

 The coal refuse disposal permittee shall conduct periodic measurements of vegetation to identify conditions during the applicable periods of responsibilities specified in §  90.159 (relating to revegetation: standards for successful revegetation). The permittee shall report the findings of these measurements to the Department.

   The provisions of this §  90.160 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.

 (a)  When the coal refuse disposal 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 postdisposal land use of this prime farmland will result in the land restored to a condition of being used for 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 nondisposal prime farmland in surrounding areas under equivalent levels of management.

   (3)  The proposed reclamation will be conducted in compliance with the requirements of this section and § §  90.162—90.165.

 (b)  If a permit is granted under this section, the permit shall be specifically conditioned as containing the plan submitted under §  90.33 (relating to reclamation plan), including any revisions to that plan suggested by the United States Soil Conservation Service.

 (c)  Areas where coal refuse disposal activities were authorized by permits issued under The Clean Streams Law (35 P. S. § §  691.1—691.1001) and the Clean Air Act (42 U.S.C.A. § §  7401—7642) prior to August 3, 1977, are exempt from the prime farmland requirements.

   The provisions of this §  90.161 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 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 the 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 §  90.164(a) (relating to prime farmland: soil replacement).

   The provisions of this §  90.162 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 §  90.162(b) (relating to prime farmland: soil removal) and the B horizon or other suitable soil materials specified in §  90.162(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 stockpiled horizons can be redistributed. Stockpiles in place for more than 30 days shall meet the requirements of §  90.98 (relating to topsoil: storage).

   The provisions of this §  90.163 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 may 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 §  90.122 (relating to coal refuse disposal), 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 §  90.162(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 §  90.162(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 §  90.45 (relating to prime farmland), 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 §  90.164 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. All vegetation shall be in compliance with the plan approved by the Department under §  90.45 (relating to prime farmland) and carried out in a manner that encourages prompt vegetative cover and recovery of productive capacity. The timing and mulching provisions of § §  90.151 and 90.157 (relating to revegetation: general requirements; and revegetation: mulching) shall be met.

 (b)  Within a time period specified in the permit, but not to exceed 10 years after completion of coal refuse disposal activities, any portion of the permit area which is prime farmland must have the capabilities of being used for crops commonly grown on surrounding prime farmland. When used for cropland, 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 farmland 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 the 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 the Department 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. The following standards shall be met:

     (i)   Average annual crop production shall be determined based upon a minimum of three years data. Crop production shall be measured for the three years prior to release of bonding according to Chapter 86 Subchapter E (relating to coal exploration).

     (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 specified in the permit in accordance with §  90.45.

   (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 §  90.159(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 consider erodability, moisture-holding capacity, permeability, depth, texture, pH and any other factors 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 §  90.22 (relating to prime farmland investigation).

   The provisions of this §  90.165 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), all 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 coal refuse disposal activities, or to higher or better uses achievable under criteria and procedures of this section.

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

   (1)  The postdisposal land use for land that has not been previously mined or had coal refuse disposal activities and has been properly managed shall be judged on the basis of those uses which the land previously supported.

   (2)  The postdisposal 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, including disposal, or the highest and best 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 postdisposal 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 coal refuse disposal 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 coal refuse disposal 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 postdisposal 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 coal refuse disposal activities are completed 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 coal refuse disposal activities, and that the plans will result in successful reclamation.

     (ii)   Provision for necessary public facilities is ensured as evidenced by letters of commitment from parties other than the person who conducts coal refuse disposal activities, as appropriate, to provide the public facilities in a manner compatible with the plans submitted under §  86.34 (relating to informal conferences). The letters shall be submitted to the Department before coal refuse disposal activities begin.

     (iii)   Specific and feasible plans are submitted to the Department which show that financing, attainment and maintenance of the postdisposal land use are feasible and, if appropriate, are supported by letters of commitment from parties other than the person who conducts the coal refuse disposal activities.

   (4)  The proposed use will not present an actual or potential threat to public health or safety or of water diminution, interruption, contamination or pollution.

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

   (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 to review the plan before coal refuse disposal activities begin.

   The provisions of this §  90.166 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 May 8, 1998, effective May 9, 1998, 28 Pa.B. 2227. Immediately preceding text appears at serial pages (208002) to (208004).

 (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 those areas, and identification of the disposal, regrading, revegetation, 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 for reasons of seasonal shutdown or labor strike.

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

 (d)  The operator shall install the system for preventing precipitation from contacting the coal refuse when the temporary cessation exceeds 90 days. The Department may approve a longer period, not to exceed 1 year, for reasons of a labor strike or business necessity.

   The provisions of this §  90.167 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 July 13, 2001, effective July 14, 2001, 31 Pa.B. 3735. Immediately preceding text appears at serial page (244314).

 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 §  90.168 adopted July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.