Subchapter F. COAL REFUSE DISPOSAL ACTIVITIES ON AREAS WITH PREEXISTING POLLUTIONAL DISCHARGES

 (a)  This subchapter specifies procedures and rules applicable to those who seek authorization to engage in coal refuse disposal activities on an area on which there are preexisting pollutional discharges resulting from previous mining and describes the terms and conditions under which the Department may release bonds to operators who have received authorization.

 (a)  Authorization may be granted under this subchapter when the authorization is part of the following:

   (1)  A permit issued after February 6, 1995, but only if the authorization request is made during one of the following periods:

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

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

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

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

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

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

     (iv)   The operator has not affected the proposed pollution abatement area by coal refuse disposal activities.

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

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

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

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

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

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

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

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

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

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

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

   (1)  Neither the operator, nor an officer, principal shareholder, agent, partner, associate, parent corporation, subsidiary or affiliate, sister corporation, contractor or subcontractor, or a related party as defined in §  86.1 (relating to definitions) has either of the following:

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

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

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

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

   (4)  The coal refuse disposal activities on the proposed pollution abatement area will not cause additional surface water pollution or groundwater degradation.

   (5)  The standard of success for revegetation will be achieved. The standard of success for revegetation for sites previously reclaimed to the standards of this chapter and Chapters 87 and 88 shall be the standards set forth in §  90.159 (relating to revegetation: standards for successful revegetation). The standard of success for revegetation for sites not previously reclaimed to the standards of this chapter and Chapters 87 and 88 shall be, at a minimum, the following, provided the site is not a bond forfeiture site where the forfeited money paid into the fund is sufficient to reclaim the forfeited site to the applicable standards:

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

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

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

   (6)  The coal refuse disposal activities on permitted areas other than the proposed pollution abatement area will not cause surface water pollution or groundwater degradation.

   (7)  Requirements of §  86.37(a) (relating to criteria for permit approval or denial) that are consistent with this section have been met.

 (b)  An authorization may be denied under this subchapter if granting the authorization will, or is likely to, affect a legal responsibility or liability under The Clean Streams Law (35 P. S. § §  691.1—691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a), Chapter 86 (relating to surface and underground coal mining: general) or Subchapters A—D, for the proposed pollution abatement area or other areas or discharges in the vicinity of the proposed pollution abatement area.

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

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

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

   (1)  Implement the approved water quality and quantity monitoring program for the pollution abatement area until the requirements of §  90.309 (relating to criteria and schedule for release of bonds on pollution abatement areas) are met.

   (2)  Implement the approved abatement plan.

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

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

 (a)  Except for preexisting discharges that are not encountered during coal refuse disposal activities or the implementation of the abatement plan, the operator shall comply with §  90.102 (relating to hydrologic balance: water quality standards, effluent limitations and best management practices).281279

 (b)  The operator shall treat the preexisting discharges that are not encountered during coal refuse disposal activities or implementation of the abatement plan to comply with the effluent limitations established by best professional judgment. The effluent limitations established by best professional judgment may not be less than the baseline pollution load. If the baseline pollution load, when expressed as a concentration for a specific parameter, satisfies the effluent limitation in §  90.102 for that parameter, the operator shall treat the preexisting discharge for that parameter to comply with either effluent limitations established by best professional judgment or the effluent limitations in §  90.102.

 (c)  For purposes of subsections (a) and (b), the term encountered may not be construed to mean diversions of surface water and shallow groundwater flow from areas undisturbed by the implementation of the abatement plan that would otherwise drain into the affected area, as long as the diversions are designed, operated and maintained under §  90.104 (b)—(h) (relating to hydrologic balance: diversions).

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

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

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

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

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

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

 (f)  Discontinuance of treatment under subsection (d) may not be deemed or construed to be or to authorize a release of bond under §  90.309 (relating to criteria and schedule for release of bonds on pollution abatement areas).

 (a)  The Department will release up to 50% of the amount of bond for the authorized pollution abatement area if the applicant demonstrates and the Department finds the following:

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

   (2)  The operator has satisfactorily completed backfilling, grading, installing the water impermeable cover and drainage control in accordance with the approved reclamation plan.

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

   (4)  The operator has not caused degradation of the baseline pollution load at any time during the 6 months prior to the submittal of the request for bond release under this subsection and until the bond release is approved as shown by all groundwater and surface water monitoring conducted by the permittee under §  90.306(a)(1) (relating to operational requirements) or conducted by the Department.

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

 (b)  The Department will release up to an additional 35% of the amount of bond for the authorized pollution abatement area but retain an amount sufficient to cover the cost to the Department of reestablishing vegetation if completed by a third party if the operator demonstrates and the Department finds the following:

   (1)  The operator has replaced the topsoil or material conserved under §  90.97 (relating to topsoil: removal), completed final grading, planting and established revegetation under the approved reclamation plan and achieved the standards of success for revegetation in §  90.305(a)(5) (relating to application approval or denial).

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

   (3)  The operator has achieved the following standards:

     (i)   Achieved the actual improvement of the baseline pollution load described in the approved abatement plan as shown by groundwater and surface water monitoring conducted by the permittee for the time provided in the abatement plan after completion of backfilling, final grading, drainage control, topsoiling and establishment of revegetation to achieve the standard for success in §  90.305(a)(5).

     (ii)   Achieved the following:

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

         (I)   For 12 months from the date of initial bond release under subsection (a), if backfilling, final grading, drainage control, placement of impermeable cover, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in §  90.305(a)(5) have been completed.

         (II)   If treatment has been initiated at any time after initial bond release under subsection (a) and §  90.307(e) (relating to treatment of discharges), for 12 months from the date of discontinuance of treatment under §  90.307(d), if backfilling, final grading, drainage control, placement of impermeable cover, topsoiling and establishment of revegetation to achieve the standard of success for revegetation in §  90.305(a)(5) have been completed.

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

       (C)   Caused aesthetic or other environmental improvements and the elimination of public health and safety problems by engaging in coal refuse disposal activities and reaffecting the pollution abatement area.

       (D)   Stabilized the pollution abatement area.

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

   (1)  The operator has successfully completed the approved abatement and reclamation plans, and the pollution abatement area is capable of supporting the postdisposal land use approved under §  90.166 (relating to postdisposal land use).

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

   (3)  The operator has not caused degradation of the baseline pollution load from the time of bond release under subsection (b) or, if treatment has been initiated after bond release under subsection (b) in accordance with §  90.307(e) for 5 years from the discontinuance of treatment under §  90.307(d).

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

   This section cited in 25 Pa. Code §  90.306 (relating to operational requirements); 25 Pa. Code §  90.307 (relating to treatment of discharges); and 25 Pa. Code §  90.308 (relating to request for bond release).