Rule2022-07660
Pennsylvania Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 12, 2022
Effective
May 12, 2022
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the approved Pennsylvania regulatory program (the Pennsylvania program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment we are approving consists of revisions and additions to Pennsylvania's regulations related to beneficial use of coal ash at active surface coal mining sites.
Full Text
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<title>Federal Register, Volume 87 Issue 70 (Tuesday, April 12, 2022)</title>
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[Federal Register Volume 87, Number 70 (Tuesday, April 12, 2022)]
[Rules and Regulations]
[Pages 21561-21578]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07660]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[SATS No. PA-161-FOR; Docket ID: OSM-2012-0009; S1D1S SS08011000
SX064A000 221S180110; S2D2S SS08011000 SX064A000 22XS501520]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an amendment to the approved Pennsylvania
regulatory program (the Pennsylvania program) under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment
we are approving consists of revisions and additions to Pennsylvania's
regulations related to beneficial use of coal ash at active surface
coal mining sites.
DATES: The effective date is May 12, 2022.
FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Acting Field Office
Director, Pittsburgh Field Office, Telephone: (412) 937-2857; email:
<a href="/cdn-cgi/l/email-protection#472528302229340728342a352269202831"><span class="__cf_email__" data-cfemail="03616c74666d70436c706e71662d646c75">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program and Federal Regulation of
Coal Combustion Residues
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
I. Background on the Pennsylvania Program and Federal Regulation of
Coal Combustion Residues
The Pennsylvania Program
Section 503(a) of the SMCRA permits a state to assume primacy for
the regulation of surface coal mining and reclamation operations on
non-Federal and non-Indian lands within its borders by demonstrating
that its program includes, among other things, State laws and
regulations that govern surface coal mining and reclamation operations
in accordance with the Act and consistent with the Federal regulations.
30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the
Secretary of the Interior conditionally approved the Pennsylvania
program effective July 30, 1982. You can find background information on
the Pennsylvania program, including the Secretary's findings, the
disposition of comments, and the conditions of approval of the
Pennsylvania program in the July 30, 1982, Federal Register (47 FR
33050). You can also find later actions
[[Page 21562]]
concerning the Pennsylvania program and program amendments at 30 CFR
938.11, 938.12, 938.13, 938.15, and 938.16.
Federal Regulation of Coal Combustion Residue
SMCRA does not directly address the placement of Coal Combustion
Byproducts (CCBs), also known as Coal Combustion Residues (CCRs), in
active or abandoned coal mines and only two of OSMRE's implementing
regulations reference CCBs: 30 CFR 816.41(i)(2)(iii) and 30 CFR
817.41(h)(2)(iii) and (v). 72 FR 12026, 12029 (March 14, 2007).
Nonetheless, as stated in our 2007 advanced notice of proposed
rulemaking, ``any material placed in mine pits or otherwise used to
reclaim a permitted mine site must comply with SMCRA permitting
requirements and performance standards, regardless of whether the
material originates within the permit area or whether it is imported
from outside the permit area.'' Id.
The United States Environmental Protection Agency (U.S. EPA)
published a final rule regulating the disposal of CCRs in the April 17,
2015, Federal Register (80 FR 21301). The 2015 U.S. EPA rule does not
apply to CCRs placed in active or abandoned underground or surface coal
mines. Since the 2015 U.S. EPA rule, U.S. EPA has amended its CCR
regulations. Background on the U.S. EPA's CCR regulations are found at:
<a href="https://www.epa.gov/coalash/coal-ash-rule">https://www.epa.gov/coalash/coal-ash-rule</a>. In 2019, U.S. EPA proposed
revising its definition of beneficial use, then deferred the rulemaking
until 2021, when U.S. EPA reopened its public comment period until May
11, 2021, on the beneficial use definition and provisions for CCR or
coal ash accumulations. If, as a result of changes in Federal law or
regulations, the approved Pennsylvania regulatory program no longer
meets the requirements of SMCRA or its implementing regulations, we may
require a state program amendment under 30 CFR 732.17(e)(1).
II. Submission of the Amendment
By letter dated March 13, 2012 (Administrative Record No. PA
894.00), Pennsylvania sent us a request to approve regulations related
to the beneficial use of coal ash at active coal mine sites. Key
provisions of the amendment include operating requirements for
beneficial use, including certification guidelines for chemical and
physical properties of coal ash beneficially used and water quality
monitoring requirements.
We announced receipt of the program amendment in the July 11, 2012,
Federal Register (77 FR 40836) (Administrative Record No. PA 894.05),
with a deadline for public comment of August 10, 2012. We received
requests to extend the public comment period, and announced an
extension in the September 25, 2012, Federal Register (77 FR 58975)
(Administrative Record No. PA 894.11). In that announcement, we issued
a new deadline of October 19, 2012, for public comments, and announced
public hearings for October 17, 2012, in Pittsburgh, Pennsylvania and
Pottsville, Pennsylvania.
After receiving written public comments and oral testimony at the
public hearings, we reviewed the amendment to determine whether it was
in accordance with SMCRA and consistent with the regulations
implementing SMCRA found at Title 30 of the Code of Federal Regulations
(the SMCRA regulations or implementing regulations). We identified
concerns and notified Pennsylvania of our concerns by letter dated
March 3, 2014 (Administrative Record No. PA 894.45). Pennsylvania
responded in a letter dated May 30, 2014 (Administrative Record No. PA
894.46). We identified additional concerns and notified Pennsylvania of
these by letter dated August 3, 2015 (Administrative Record No. PA
894.47). Pennsylvania responded in a letter dated November 25, 2015
(Administrative Record No. PA 894.48). In both of its response letters,
Pennsylvania elaborated on details of its proposed regulations.
In the proposed rule published in the Federal Register on July 11,
2012, we described the proposed program amendment to include sections
of the Pennsylvania Code that, after further consultation with
Pennsylvania, we learned are not part of the program amendment.
Specifically, in the March 3, 2014, issue letter, we requested
clarification of which regulations are pertinent to administering the
approved Pennsylvania program. In a May 30, 2014, letter to us
(Administrative Record No. PA 894.46), Pennsylvania clarified that it
is requesting approval of regulations found at 25 Pa. Code sections
287.1 (definition of ``coal ash''), 290.1, 290.101, 290.103, 290.104,
290.107, Subchapter C--Coal Ash Certification (sections 290.201,
290.202 and 290.203), and Subchapter D--(sections 290.301, 290.302,
290.303, 290.304, 290.305, 290.306 and 290.307). Thus, 25 Pa. Code
sections 290.2, 290.102, 290.105, and 290.106 are not part of the
Pennsylvania amendment.
III. OSMRE's Findings
We are approving the amendment request under SMCRA and the Federal
regulations at 30 CFR 732.15 and 732.17. In this final rule, we are
approving the changes to Pennsylvania's regulatory program as noted
below. The full text of the program amendment is available for review
at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
287.1 Definitions
The definition of ``coal ash'' has been added to Pennsylvania's
regulatory program. Coal ash is defined for the purposes of Chapters
287 and 290 to include: Fly ash, bottom ash, or boiler slag that
resulted from the combustion of coal and is or has been beneficially
used, reused, or reclaimed for a commercial, industrial, or
governmental purpose. The definition includes materials that are
stored, processed, transported, or sold for beneficial use, reuse, or
reclamation. The definition also states that for the purposes of
Chapter 288 of the Pennsylvania Code, which regulates residual waste
landfills, coal ash is defined as fly ash, bottom ash, or boiler slag
that resulted from the combustion of coal and that has not been
beneficially reused.
OSMRE Finding: Neither SMCRA nor its implementing regulations
define coal ash. However, Pennsylvania's definition of coal ash as
types of coal ash, such as fly ash, that are products of coal
combustion, and its list of possible uses is reasonable. We have
determined the addition of the definition of coal ash is not
inconsistent with SMCRA and its implementing regulations. We have also
determined that the last sentence of the definition, pertaining to
Chapter 288 of the Pennsylvania Code that relates to residual waste
landfills, does not pertain to surface coal mining. Therefore, we
approve the first two sentences of the definition of ``coal ash'' at 25
Pa. Code 287.1. Because the last sentence of the definition does not
pertain to surface coal mining, it is not included in the approval.
290.1 Definitions
The definition of ``Temporary coal ash storage pile'' has been
added and is defined as a pile in which coal ash is stored for not more
than two weeks. The definition of ``Water table'' is the top of the
saturated zone including regional groundwater table, perched water
tables, seasonal water tables, and mine pools.
OSMRE Finding: Neither SMCRA nor its implementing regulations
define ``temporary coal ash storage pile.'' Storage of not more than
two weeks is a reasonable interpretation of the term
[[Page 21563]]
``temporary.'' Accordingly, we have determined that the definition of
temporary coal ash storage pile is not inconsistent with SMCRA or its
implementing regulations and we approve the definition of temporary
coal ash storage pile at 25 Pa. Code 290.1.
We have determined that the definition of water table is no less
effective than the Federal definition of ``water table'' at 30 CFR
701.5. The definition proposed for Chapter 290 of the Pennsylvania Code
is ``the top of the saturated zone,'' and the Federal definition is the
``upper surface of a zone of saturation where the ground water is not
confined by an overlying impermeable zone.'' These definitions are
identical in effect because they both retain the same fundamental
concept that the water is not confined by an overlying impermeable
zone. Pennsylvania's definition also provides examples of these types
of water tables. Therefore, we approve the definition of water table at
25 Pa. Code 290.1.
290.101 General Requirements for Beneficial Use
Pennsylvania added this section, which provides that, if operators
comply with Chapter 290, then no solid waste disposal permit is
required for beneficial use of coal ash. To be considered a beneficial
use, chemical analysis must indicate that the coal ash does not exceed
any of the maximum acceptable leachate levels discussed in section
290.201(a) and meets the physical characteristics of section 290.201.
This section also provides that the chemical characteristics from
section 290.201(a) apply to other beneficial uses of coal ash, such as
structural fill, that are not part of this amendment.
A water quality monitoring plan is required for any structural fill
that is used at a coal mining activity site or abandoned surface coal
mine site where more than 10,000 tons of coal ash per acre or more than
100,000 tons in total per site is used. Additionally, the Pennsylvania
Department of Environmental Protection (PADEP), at its discretion, may
implement a water quality monitoring plan involving lesser quantities
of coal ash. Coal ash may not be placed within eight feet of the water
table unless used for mine subsidence control, mine fire control, or
mine sealing. Coal ash may not be used in a way that causes water
pollution.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts. The Federal regulations
implementing SMCRA do not specifically address beneficial use of coal
ash. However, Pennsylvania's proposed coal ash regulations are
consistent with the performance standards described at 30 CFR 816.41
and 816.42 and the monitoring and planning regulations at 30 CFR
780.21. The Federal regulation at section 816.41(b) of Title 30
requires that groundwater quality must be protected by minimizing toxic
infiltration and approximating pre-mining recharge capacity. The
incorporation of maximum acceptable leachate levels from section
290.201(a) of the Pennsylvania Code and the restriction on placement
within eight feet of the water table minimize toxic infiltration to the
most feasible extent. Furthermore, the requirement for a water quality
monitoring plan and the minimum standards for that plan, as described
in section 290.301 of the Pennsylvania Code, are consistent with 30 CFR
780.21(i) and 816.41(c), because section 290.301, as well as the SMCRA
regulations, require a monitoring frequency of every three months,
sampling of pH, total iron, and total manganese. Also, Pennsylvania
requires monitoring protocols that incorporate the US EPA's Handbook
for Analytical Quality Control in Water and Wastewater Laboratories.
Finally, to the extent that section 290.101 requires other chemical
analysis in sections of the Pennsylvania Code that were not submitted
as a program amendment, namely sections 290.102, 290.105 and 290.106,
these other beneficial uses of coal ash are outside of the scope of
this amendment, and we will not issue a finding on them here.
Therefore, we approve 25 Pa. Code 290.101 as it applies to coal mining
activities.
290.103 Use as a Soil Substitute
Pennsylvania added section 290.103, which provides that coal ash
may be used as a soil substitute if, 60 days prior to such use, a
written proposal is submitted to the PADEP. According to the additional
section, the proposal must contain:
<bullet> A description of the project, including a topographic and
soils map of the projected area and an explanation of how the coal ash
will be stored prior to use, how the soil will be prepared for
application, how the coal ash will be spread and, when necessary, how
the coal ash will be incorporated into the soil;
<bullet> Commencement and conclusion dates of the project;
<bullet> Proposed volume of coal ash to be used, the proposed
application rate and a justification for the rate;
<bullet> A total chemical and leaching analysis and pH analysis no
older than one year old;
<bullet> A chemical analysis of coal ash for eleven constituents
listed in subsection (e);
<bullet> An analysis indicating the coal ash will be beneficial to
the use of the soil. This must be prepared and signed by an expert in
soil science; and
<bullet> Landowner consent to use of coal ash as a soil substitute
or additive.
The PADEP will respond in writing to the person proposing the use
of coal ash as a soil substitute or additive indicating if it is
consistent with this section.
To be considered a beneficial use as a soil substitute or additive
the following must be met:
<bullet> pH must range between 6.5 to 8.0 when mixed together as
required by the project;
<bullet> Chemical analysis demonstrates calcium carbonate
equivalency requirements;
<bullet> Surface runoff is controlled;
<bullet> Coal ash must be incorporated into the soil within 48
hours of application, unless the PADEP approves a deviation. The coal
ash must be incorporated into the first layer of surface soil, or if
such is not present, the coal ash and substitute material must equal
one foot. Coal ash is to enhance soil properties or plant growth;
<bullet> Coal ash must be applied at a rate per acre that protects
public health, public safety, and the environment; and
<bullet> Fugitive dust must be minimized.
Coal ash may not be applied to soil being used for agriculture when
the soil pH is less than 5.5 or if resultant chemical or physical soil
conditions would be detrimental to biota.
Coal ash as a soil substitute or additive may not be placed within:
<bullet> 100 feet of an intermittent or perennial stream;
<bullet> 300 feet of an exceptional value wetland or exceptional
value or high-quality waters;
<bullet> 300 feet of a water supply unless the water supply owner
consents to a variance;
<bullet> 100 feet of a sinkhole or area draining to a sinkhole; and
<bullet> 300 feet from an occupied dwelling unless a landowner
consents to a variance.
Maximum cumulative loading rates may not be exceeded in
relationship to the following eleven constituents: Arsenic, boron,
cadmium, chromium, copper, lead, mercury, molybdenum, nickel, selenium,
and zinc.
Records of chemical and physical analyses, quantity of coal ash
used, location of placement, and sources of the coal ash must be
maintained for a
[[Page 21564]]
minimum of three years and must be made available upon request by the
PADEP.
Any deviation from the approved physical or chemical standards must
be reported to the PADEP within 72 hours.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts but are consistent with
SMCRA and the Federal regulations found at 30 CFR 779.21(b), 816.22,
816.41, and 816.111. SMCRA and its implementing regulations do not
specifically address the use of coal ash as a soil substitute in
reclamation applications, but do include requirements for the use and
distribution of soil substitutes in general, for protection of the
hydrologic balance, and for revegetation during reclamation.
The provisions in this section, including those related to a
chemical leachate analysis, mandatory pH range, calcium carbonate
equivalency requirements, and a limit on use of coal ash to the amount
necessary to enhance soil properties, are sufficient to ensure that the
application of coal ash as a soil substitute are consistent with the
Federal regulations at 30 CFR 816.22(b) that provide that overburden
may supplement or substitute soil if the operator demonstrates that the
resulting medium is at least as suitable for sustaining vegetation as
the original soil. The provisions in this section therefore also ensure
that the application of coal ash as a soil substitute can support the
revegetation requirements found at 30 CFR 816.111.
Other provisions in this section ensure that the application of
coal ash as a soil substitute are not inconsistent with the Federal
regulation at 30 CFR 816.41, which requires the protection of the
hydrologic balance. The Federal regulation at 30 CFR 816.41(b) requires
that groundwater quality must be protected by minimizing toxic
infiltration and approximating pre-mining recharge capacity. The
incorporation of maximum acceptable leachate levels from section
290.201(a) of the Pennsylvania Code and the restriction on placement
within eight feet of the water table minimize toxic infiltration to the
most feasible extent. Section 816.41(d) of Title 30 of the Federal
regulations requires operators to prevent acid or toxic drainage,
runoff of suspended solids and general water pollution. This proposed
section of the Pennsylvania Code contains significant buffers around
streams and wetlands within which use of coal ash is not permitted, and
includes a requirement to control surface runoff. These, in combination
with the monitoring requirements described at 25 Pa. Code 290.301, are
consistent with the Federal regulation at 30 CFR 816.41.
In total, the provisions in this section are consistent with the
requirements in the Federal regulations implementing SMCRA. Therefore,
we approve 25 Pa. Code 290.103.
290.104 Beneficial Use at Coal Mining Activity Sites
Pennsylvania added section 290.104, which provides that approval
for the beneficial use of coal ash at coal mining activity sites must,
at a minimum, be:
<bullet> In compliance with the Pennsylvania's Clean Streams Law,
its Surface Mining Conservation and Reclamation Act, its Coal Refuse
Disposal Control Act, the applicable provisions of Chapters 86-90 and
other applicable environmental statutes, and regulations promulgated
thereunder;
<bullet> Certified under section 290.201; and
<bullet> Approved by the PADEP based on a request that is filed for
approval. Each person wishing to use certified coal ash for a
beneficial use at a coal mining activity site as part of a reclamation
plan must submit a request with an appropriate filing fee and include
the following:
[cir] A description of the project, including an estimate in cubic
yards of the amount of coal ash to be used and how it will be stored
prior to placement;
[cir] Documentation that the coal ash has been certified for its
intended use, including the identity of the generator and the PADEP-
assigned certification identifier;
[cir] A consent from the landowner properly recorded in the county
deeds office; and
[cir] An appropriate water quality monitoring plan.
When beneficial coal ash is used at a coal mining activity site, a
nonrefundable permit filing fee is to be paid annually in the amount of
$2,000 for each year it is used until the year following final
placement and then $1,000 for each year until final bond release is
achieved. This fee will be used to administer compliance programs. This
fee will be reviewed and adjusted as necessary. Public notice must be
given if coal ash is used at a coal mining activity site. Overall
improvement in water quality or prevention of degradation of water
quality is a requirement for using coal ash for reclamation purposes at
coal mining activity sites. Coal ash may be allowed for beneficial use
only for reclamation purposes at the following locations: Pit area,
abandoned mine lands within the surface coal mining permit, coal refuse
disposal and reprocessing sites, and areas where other beneficial uses
included in the reclamation plan are being conducted.
To be placed at active coal mining sites, the following additional
operational requirements must be met including:
<bullet> The volume of the coal ash placed at the site may not
exceed the volume of the coal, coal refuse, culm, or silt removed,
unless approved by the PADEP. A greater volume will be allowed when it
is demonstrated that reclamation will be enhanced or water quality
improved or for certain exceptions at coal refuse reprocessing sites;
<bullet> Placement occurs by mixing with spoil or spreading it in
horizontal layers no greater than 2 feet thick unless otherwise
approved by the PADEP;
<bullet> Spreading and compaction must occur within 24 hours of
delivery unless stored in accordance with the requirements of 25 Pa.
Code Chapter 290, Subchapter E;
<bullet> Requirements of the Modified or Standard Proctor Test must
be met when coal ash placement is not accomplished by mixing with
spoil;
<bullet> Maintenance of the sources and volume of coal ash used;
<bullet> An approved water quality monitoring plan; and
<bullet> Minimization of fugitive dust.
Additional requirements are necessary for sites using coal ash as a
soil substitute, soil additive, or when used at a coal refuse disposal
site. Quarterly water sampling must be completed and submitted to the
PADEP for review, unless less frequent monitoring is approved by the
PADEP. Annual reporting of coal ash placed on a coal mining activity
site must be submitted to the PADEP. Any deviation from the approved
physical or chemical standards must be reported to the PADEP within 72
hours.
OSMRE Finding: We have determined that the provisions in this
section have no direct counterpart in SMCRA or Federal regulations
implementing SMCRA, because they do not address the use of coal ash.
This section establishes standards for use of coal ash on permitted
mining sites, and, as stated in this section, beneficial use of coal
ash at coal mining sites is also subject to applicable provisions of
Chapters 86-90 of the Pennsylvania Code that includes compliance with
Pennsylvania's equivalent to the performance standards of 30 CFR part
816, such as the protection and storage of topsoil and subsoil,
hydrologic balance protection, impoundments, postmining land use,
contemporaneous reclamation,
[[Page 21565]]
backfilling and grading, revegetation, and others.
This section includes provisions relating to permit fees, and those
provisions are in accordance with section 507(a) of SMCRA, which
prohibits permit fees from exceeding the actual or anticipated cost to
review, administer, and enforce the permit. Pennsylvania explained in
its letter dated May 30, 2014, that it based the permit fee on
estimates of program costs to monitor the beneficial use of coal ash,
including labor costs and sample analysis costs and then only to cover
a portion of those costs. Pennsylvania further clarified in its
November 25, 2015, letter that the fees were based on a workload
analysis of how much time it takes to inspect a coal mine site where
coal ash is being used and the sampling costs. The fees were then based
on half of the total cost to account for the portion covered by the
Title V grant and then further reduced to ``provide a more reasonable
fee amount.''
This section also describes operating requirements for various
applications of coal ash, including general placement location, use at
coal surface mining activity sites, use as a soil additive or
substitute, use at coal refuse disposal sites, additional sampling
protocols, and reporting and notification requirements. These
provisions have no direct SMCRA counterparts. However, the restrictions
on placement of coal ash and the requirement that use of coal ash be
designed to improve or prevent degradation of water quality are
consistent with the Federal requirement at 30 CFR 816.41(d) to prevent
acid or toxic drainage, runoff of suspended solids, and general water
pollution.
The provisions concerning placement of coal ash at surface mining
activity sites contain limits on the volume and thickness of coal ash
and minimum requirements for compaction. These provisions are
consistent with the Federal regulations at 30 CFR 816.102, which
require backfilling and grading to minimize erosion and ensure that
spoil and waste materials are compacted to ensure stability.
The provisions concerning use of coal ash as a soil additive or
substitute are not inconsistent with SMCRA or its implementing
regulations as explained in our Finding for 290.103.
The provisions concerning use of coal ash at coal refuse disposal
sites have no direct SMCRA counterparts. However, since the provisions
apply to sites already permitted under Chapters 86-90 of the Pa. Code,
and because the coal ash must improve compaction and stability, reduce
water infiltration, and improve the coal refuse leachate, the
provisions are consistent with the Federal regulations at 30 CFR 816.81
and 816.83, which require general coal mine waste to minimize water
infiltration, minimize surface erosion, and minimize adverse effects of
leachate.
The provisions concerning coal ash sampling require compliance with
the certification provisions proposed at 290.201, which are being
approved; see our Finding for section 290.201 for rationale. This
subsection provides for approval of less frequent monitoring only if
the coal ash will be used on or contiguous to the generation site.
Under these conditions, the coal ash will be monitored quarterly at the
generation facility and placed on a contiguous site without any changes
to the constituents of the coal ash. Therefore, the quarterly
monitoring at the facility may substitute for a portion of the sampling
at the adjacent placement site, while still maintaining an overall
sampling regimen that will protect groundwater and surface waters
consistent with Federal regulations at 30 CFR 816.41.
The provisions concerning reporting and notification do not have
direct SMCRA counterparts. However, the requirement to submit an annual
report to the PADEP with volume and weight of coal ash, and the
requirement to notify the PADEP if the coal ash does not meet its
certification requirements, will allow the PADEP to monitor and react
to changes in the quantity and quality of coal ash used under this
chapter, and ensure compliance with the Federal regulations discussed
herein.
This section is not inconsistent with the Federal regulations
implementing SMCRA. Therefore, we approve 25 Pa. Code 290.104.
290.107 Requests for Information
Pennsylvania has added this section that provides that the PADEP
has the right to request information documenting compliance with this
subchapter and that failure to have documentation of compliance may
result in a presumption of that person disposing of residual waste
without a permit.
OSMRE Finding: There is no direct Federal counterpart in either
SMCRA or its implementing regulations. We have determined that
Pennsylvania has the discretion to require additional information in
order to ensure compliance with the Pennsylvania program. We have
determined that this section is not inconsistent with SMCRA or its
implementing regulations. Therefore, we approve 25 Pa. Code 290.107.
290.201 Coal Ash Certification
Pennsylvania has added this section, which provides that, in order
to obtain coal ash certification, the following must be met:
<bullet> Maximum acceptable leachate levels must be met.
Specifically, for metals and other cations (other than selenium) the
criterion is 25 times the waste classification standard for a
contaminant. For selenium and sulfate, the criterion is 10 times the
waste classification standard. For non-metals and anions (other than
sulfate and fluoride) the criterion is equal to the waste
classification standard for a contaminant;
<bullet> pH must be greater than 7.0;
<bullet> When coal ash is used as an alkaline additive, the calcium
carbonate equivalency must be a minimum of 100 parts per thousand. The
Neutralization Potential Test is the standard unless another is
approved by the PADEP; and
<bullet> When coal ash is used as a low permeability material the
hydraulic conductivity must be 1.0 x 10 to the negative sixth power or
less. This is evaluated using approved PADEP standards. The testing
must use compaction and other preparation techniques to simulate
conditions at the mine site.
To reach the parameters established above, lime or cement may be
added to the coal ash contingent upon request to and approval by the
PADEP.
Requests to the PADEP for certification by a generator must
include:
<bullet> Name and location of the generator;
<bullet> Designation of the beneficial use or uses requested;
<bullet> A specific description of the generation process. This
should include details on the combustion and pollution control
processes, the impact of these processes on the coal ash, fuel sources
used, and the expected percentages of coal ash that will be derived and
ultimately delivered to the beneficial use site;
<bullet> Description of any material mixed with the coal ash;
<bullet> A detailed chemical analysis, from a documented
environmental laboratory, on at least four samples, taken throughout a
2 to 6-month sampling period within a year that fully characterizes the
composition of the coal ash. This analysis must include:
[cir] Total concentrations for heavy metal using methods found in
US EPA's ``Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods'' (US EPA Publication No. SW-846) or comparable methods
approved by the PADEP.
[[Page 21566]]
[cir] Leachable concentration for heavy metals using methods found
in EPA's ``Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods'' (US EPA Publication No. SW-846) or comparable methods
approved by the PADEP. Leachate concentrations must be determined using
EPA Method 1312, the synthetic precipitation leaching procedure, unless
another leaching procedure is required by the PADEP.
[cir] pH using the soil and waste pH method found in EPA's ``Test
Methods for Evaluating Solid Waste, Physical/Chemical Methods'' (US EPA
Publication No. SW-846) or comparable methods approved by the PADEP.
[cir] Information that shows that the laboratory making a chemical
analysis for the application is in compliance with 27 Pa.C.S. Chapter
41 (relating to environmental laboratory accreditation)
<bullet> A laboratory analysis for optimum moisture content and dry
density;
<bullet> Analysis of hydraulic conductivity;
<bullet> Determination of neutralization potential;
<bullet> A detailed description of the sampling methodology used;
and
<bullet> Other necessary testing if required for a specific
beneficial use proposed.
PADEP will review requests and notify the generator in writing of
the assigned certification identifier or rationale as to why the source
was not certified. If the coal ash is certified, the generator must
submit regular monitoring information demonstrating continued
compliance. The monitoring information must include at least one
representative sample, taken quarterly. Further, a representative
sample is required whenever there is a change in operation that could
result in a change to any chemical or physical component of the coal
ash. Annually a report must be produced that includes the weight, in
dry tons, of coal ash produced for beneficial use in the previous
calendar year, an estimate of the volume and the locations of where the
coal ash is delivered.
A coal ash generator must notify the PADEP of any changes to the
information found in the application or evidence that the coal ash is
not meeting certification requirements.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts. We have determined that
the request by a generator for certification of the coal ash is an
integral component of the process to allow the beneficial use of coal
ash for reclamation, as an alkaline additive, as a low permeability
material, or as a soil additive or soil substitute. The Federal
regulation at 30 CFR 780.18(b)(4) provides that a reclamation plan must
demonstrate the suitability of topsoil substitutes or supplements under
30 CFR 816.22(b) and that the regulatory authority may require other
analyses to demonstrate the suitability of those substitutes and
supplements. Section 816.22 of Title 30 of the Federal regulations
requires that overburden used as a soil substitute or supplement allow
the resulting soil mixture to achieve equivalent vegetative capacity as
the original soil. This section of the amendment places strict limits
on chemical constituents, mandates a specific pH range, and requires
analysis of hydraulic conductivity, moisture content, and dry density.
The combination of chemical and physical requirements is consistent
with the requirements of Federal regulations at 30 CFR 780.18 (b)(4)
and 816.22 (b) of a demonstration for topsoil substitutes and
supplements.
Federal regulations at 30 CFR 816.41 require protection of
groundwater and surface water by preventing acid formation and
minimizing discharge of pollutants. This proposed section allows for
the prevention of acid formation through the use of coal ash by
requiring minimum levels of calcium carbonate equivalency in
neutralization and by allowing the use of coal ash as a low
permeability substance to minimize infiltration of water at coal refuse
disposal sites. This section also minimizes discharge of pollutants by
setting strict limits on the presence of various chemical components in
the coal ash. This section therefore is consistent with the performance
standards described at 30 CFR 816.41.
Therefore, we approve 25 Pa. Code 290.201.
290.202 Revocation of Certification
Pennsylvania has added this section, which provides that
certification for a source of coal ash will be revoked if any of the
following occur:
<bullet> Monitoring requirements are not met;
<bullet> Coal ash exceeds certification standards and exceedance
certification requirements, as described in section 290.203; or
<bullet> Physical or chemical characteristics make the coal ash
unsuitable for beneficial use.
If certification is revoked, the coal ash cannot be used at a coal
mining activity site or an abandoned mine land site in the
Commonwealth, unless recertification is approved by the PADEP as
outlined in subsection (c).
Recertification is possible if the generator can demonstrate, via
detailed chemical analysis on the three recent monthly representative
samples, that the coal ash meets the certification requirements, and
there are no physical or chemical characteristics that make the coal
ash unsuitable for beneficial use.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts. The Federal regulation
at 30 CFR 780.2 provides that the regulatory authority, in this case
the PADEP, should be provided comprehensive and reliable information
and that activities are only allowed if they are in compliance with
SMCRA, the regulations, and the regulatory program. The criteria for
revoking coal ash certification are necessary to ensure that coal ash
is suitable as a beneficial use and in compliance with Pennsylvania's
coal ash regulations. We have determined that this regulation is not
inconsistent with the Federal regulations implementing SMCRA.
Therefore, we approve 25 Pa. Code 290.202.
290.203 Exceedance of Certification Requirements
Pennsylvania has added this section, which provides that, if the
coal ash sample results exceed any certification standard, the
generator must--within 30 days of receiving the results--submit to the
PADEP the following, as applicable:
<bullet> In the event of a laboratory error, documentation and an
explanation of the error from the laboratory, along with a corrected
analysis demonstrating the coal ash certification standards are met;
and
<bullet> Demonstration of an anomaly. This must be documented by a
comparison of the anomalous sample with prior samples, additional
samples demonstrating criteria are being met, a plan for temporary
increases in monitoring, and an explanation of the cause of the
exceedance and how further exceedances will be avoided.
By providing this information, if the generator demonstrates to the
PADEP's satisfaction that the exceedance is an anomaly, use of the coal
ash as a beneficial use may resume. Failure to provide this information
will result in a revocation of beneficial use certification for the
source.
OSMRE Finding: We have determined that the provisions in this
section have no direct SMCRA counterparts. As stated in the above
Finding, the Federal regulation at 30 CFR 780.2 provides that the
regulatory authority should be provided with comprehensive and reliable
information and that activities are allowed only if they are in
compliance with SMCRA, the regulations, and the regulatory program. The
establishment of procedures for the
[[Page 21567]]
enforcement of the exceedance of certification requirements will ensure
that no adverse effects will result from those sources of coal ash that
exceed any certification standard. This section is not inconsistent
with the Federal regulations implementing SMCRA. Therefore, we approve
25 Pa. Code 290.203.
290.301 Water Quality Monitoring
Pennsylvania has added this section, which requires the submittal
to the PADEP of a water quality monitoring plan before placement or
storage of coal ash. At a minimum, the plan must include:
<bullet> The location and design of down gradient and up-gradient
monitoring points;
<bullet> A minimum of 12 background samples from each monitoring
point taken at monthly intervals prior to placement of coal ash; and
<bullet> After each monitoring point is approved, samples are to be
taken quarterly unless Pennsylvania requires more frequent sampling.
The person taking the samples and the laboratory performing the
analysis must employ the quality assurance/quality control procedures
outlined in the US EPA's Handbook for Analytical Quality Control in
Water and Wastewater Laboratories or Test Methods for Evaluating Solid
Waste. The analytical methodologies used to meet the requirements of
this section must follow established US EPA protocol. The laboratory
performing water quality analysis must be in conformity with PADEP
mandated environmental laboratory accreditation.
Samples are to be analyzed for pH, temperature, specific
conductance, alkalinity, acidity, sulfate, chloride, fluoride, nitrate,
nitrite, ammonia, and total suspended solids without filtration.
Samples must be analyzed for heavy metals, total and dissolved
concentrations. Also, static water elevation for monitoring wells and
for springs, seeps, and mine discharges must be measured. Additional
parameters may be required at the PADEP's discretion.
Quarterly water quality monitoring will continue and be submitted
to the PADEP for a minimum of five years after final placement or
storage of coal ash and annually thereafter from the end of year five
through 10 years after final placement or storage, unless a longer
period is required by the PADEP.
A demonstration of attainment of applicable groundwater or surface
water remediation standards must be made and must be in conformity with
an assessment plan under section 290.304 and an abatement plan under
section 290.305.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts. These provisions do
establish a framework for monitoring and responding to water quality
readings at sites with beneficial use of coal ash. The section provides
that the water quality analysis must follow the methodologies in the
most recent US EPA guidelines along with the Standard Methods for
Examination of Water and Wastewater, which is also a requirement of the
Federal regulation at 30 CFR 780.21(a). The Federal regulation at 30
CFR 780.21(j)(2) requires that the surface water monitoring plan
include the quantity and quality parameters, sampling frequency, and
site locations. The section includes all of these requirements.
Additionally, the section requires water quality monitoring of the same
parameters as required by 30 CFR 780.21, as well as additional
parameters not required by that section.
Paragraph (h) of section 290.301 of the Pennsylvania Code requires
groundwater monitoring for a period of 10 years after final placement
of coal ash. The Federal regulations at 30 CFR 816.41 require that both
surface water and groundwater monitoring must occur until bond release.
Final bond release occurs once the five-year period of responsibility
for revegetation, described at 30 CFR 816.116, has elapsed and all the
reclamation requirements are met. The amendment does not include a
reference to revegetation in its water monitoring requirements.
However, Pennsylvania has stated in its May 30, 2014, letter to us
(Administrative Record Number PA 849.46) that its revised Technical
Guidance Document will clarify that ``Stage 3 reclamation bonds will be
held for 10 years following the completion of vegetative planting on
the site to correspond with the groundwater monitoring required in
[section] 290.301(h). If pollution of groundwater is not observed at
the end of this 10-year period, bonds may be released.''
Therefore, we approve 25 Pa. Code 290.301, to the extent that water
monitoring will continue until final bond release as specified in 25
Pa. Code 86.151(a). If we determine in the future that Pennsylvania is
implementing this provision differently, we may require Pennsylvania to
submit a program amendment to revise its program.
290.302 Number, Location, and Depth of Monitoring Points
Pennsylvania added this regulation that provides the water quality
monitoring system must accurately characterize groundwater and surface
water flow and chemistry and flow systems on the site and adjacent
areas. To achieve this, the following must be met:
<bullet> The monitoring system must have at least one point that is
upgradient of the coal ash placement in order to provide representative
data of groundwater not affected by the coal ash placement. The
exception to this is in the event the placement is the up-gradient
point; in such instances down gradient monitoring points will be used;
<bullet> The monitoring system must have at least three groundwater
monitoring points down gradient of the coal ash placement, unless a
request or need for only two is approved by the PADEP. Furthermore, at
the PADEP's discretion, springs, seeps, and mine discharges may serve
as substitutes if they are down gradient and will be as effective in
monitoring the coal ash placement. Downgradient monitoring points must
be hydrologically connected to the area of coal ash placement and
constructed in a manner to detect chemical influence of the coal ash
placement area throughout the longevity of the placement of coal ash.
These points must be developed and protected as approved by the PADEP;
and
<bullet> Surface water monitoring points are necessary where such
monitoring may indicate any chemical influence on the hydrologic regime
from coal ash placement.
Upgradient and downgradient points should be sufficient in number,
location, and depth to be representative of water quality. These points
must not interfere with routine operations at the site and in most
cases should be within 200 feet of the coal ash placement area.
Upgradient points must be located so as not to be affected by
effects on groundwater or surface water from the coal ash placement
area. Downgradient monitoring points must be placed to provide early
detection.
All wells drilled must be in compliance with the Water Well
Drillers License Act and all well materials must be decontaminated
prior to installation.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts. We have determined that
the standards for monitoring points described in this section will
characterize water quality to allow for corrective actions if
necessary. This section is not
[[Page 21568]]
inconsistent with the provisions of 30 CFR 780.21 that require surface
water and groundwater monitoring plans to identify the water quantity
and quality parameters to be monitored and site locations of the
monitoring points. Accordingly, we have determined that these
provisions are consistent with the Federal requirements at 30 CFR
780.21. Therefore, we approve 25 Pa. Code 290.302.
290.303 Standards for Wells and Casing of Wells
Pennsylvania added a regulation that provides that for monitoring
wells:
<bullet> Wells must be cased to maintain the integrity of the
borehole and be constructed of material that will not react with the
groundwater that is being monitored.
<bullet> The minimum casing diameter must be four inches.
<bullet> The well must be constructed with a screen that is
factory-made, will not react with the groundwater, and the screen must
maximize open area to minimize entrance velocities and allow rapid
sample recovery.
<bullet> The well must be filter-packed with chemically inert clean
quartz sand, silica or glass bead. The material chosen must be well-
rounded and dimensionally stable.
<bullet> The casing must extend at least one foot above ground,
unless the PADEP allows for flush mount wells.
<bullet> The annular space above the sampling depth must be sealed
to prevent contamination and the casing must be designed and
constructed to prevent cross contamination. The PADEP has discretion to
approve alternative casing designs for wells in stable formations.
<bullet> The protective monitoring well casings must be enclosed in
a protective casing that protects the well from damage, be installed
for at least the upper 10 feet of the monitoring well and must stick up
no more than three feet, and be grouted and placed with a concrete
collar at least three feet deep.
<bullet> The casing must be numbered, strong enough to protect the
well from damage by heavy equipment or vandalism, protrude above the
monitoring well casing, have a locked cap and must be made of steel or
other material of equivalent strength.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts. However, these
provisions are consistent with 30 CFR 816.13, which provides that any
exposed underground opening must be managed and approved by the
regulatory authority to minimize disturbance to the hydrologic balance
and must be safe. The monitoring well casing standards described in
this section will protect groundwater quality, allow for accurate and
frequent water monitoring, and are protective. Accordingly, we have
determined that these provisions are consistent with the Federal
requirements at 30 CFR 816.13. Therefore, we approve 25 Pa. Code
290.303.
290.304 Assessment Plan
Pennsylvania has added a regulation providing that an assessment
plan must be prepared within 60 days should any of the following occur:
<bullet> Degradation is indicated from water monitoring data.
Statistical methods set forth in the US EPA's regulations at 40 CFR
258.53 will be used to assess the data; or
<bullet> Laboratory analysis of public or private water supplies
indicate contamination of ground or surface water that could reasonably
be attributable to coal ash placement.
Assessment must consist of chemical data and a supporting narrative
should one of the following apply:
<bullet> Within ten working days following receipt of the degraded
sample, re-sampling indicates degradation has not occurred.
Determination that degradation is not present must be approved by the
PADEP; or
<bullet> Within twenty working days following receipt of the
degraded sample, demonstration is made that the degradation is caused
by seasonal variations or activities unrelated to coal ash placement.
The assessment plan must specifically address the existence of the
quality, quantity, area, extent, and depth of degradation and the rate
and direction of migration of contaminants. It must be prepared by and
under seal of a licensed professional geologist.
For assessment plans involving wells, lysimeters, borings, pits,
piezometers, springs, seeps, mine discharges, and other assessment
structures or devices, the number, location, size, casing type, and
depth must be included. If the assessment points are wells, they must
be constructed in accordance with this subchapter.
All assessment plans must include:
<bullet> Sampling and analytical methods for parameters to be
evaluated;
<bullet> Evaluation procedures, including the previously gathered
groundwater or surface water quality and quantity information, which is
to be included to determine the concentration, rate, and extent of
groundwater or surface water degradation from the facility;
<bullet> A biological assessment of surface water, if required;
<bullet> An implementation schedule; and
<bullet> Identification of the abatement standard that will be met.
The assessment plan must be implemented upon approval by the PADEP
within a reasonable time not to exceed six months. Should the PADEP
determine the proposed plan is inadequate, it may modify the plan and
approve it as modified.
If the groundwater or surface water assessment indicates that
contamination is leaving the coal ash placement site, the person
subject to the requirements of Title 25 of the Pa Code, Chapter 290
must notify, in writing, each water supply owner within one-half mile
down gradient of the coal ash placement area that an assessment has
been initiated.
Within 45 days after the completion of the assessment plan, the
person subject to the requirements of Title 25 of the Pa Code, Chapter
290 must submit a report containing the new data collected, analysis of
the data, and recommendations on the necessity for abatement.
If the PADEP determines after review of the assessment report that
implementation of an abatement plan is not required--pursuant to this
subchapter--a revised water quality monitoring plan must be submitted
for approval to the PADEP. This revised water quality plan must outline
any necessary changes and include an application for permit
modification if applicable. The modifications to the plan must be
implemented within 30 days of approval.
Nothing in this section prevents the concurrent abatement or water
supply replacement with or prior to implementation of the assessment.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts. The Federal regulations
at 30 CFR 816.41 requires groundwater and surface water monitoring, and
that the operator must promptly notify the regulatory authority when
sampling indicates non-compliance and take actions provided in 30 CFR
773.17(e), which requires the permittee minimize any adverse impacts,
and 30 CFR 780.21(h), which requires the permittee to take remedial
measures. In response to our inquiry about how assessment plans and
abatement plans will be incorporated into the coal mining permits and
how they will be monitored for compliance, Pennsylvania, in its May 30,
2014, response stated that ``[p]ermit amendments, permit special
conditions or consent orders would be incorporated into the permit
should an assessment/abatement plan be required.'' We also
[[Page 21569]]
stated that operators should immediately notify the PADEP of
contamination leaving the coal ash placement site. Pennsylvania, in its
May 30, 2014, response stated that the requirements of Chapter 290 of
the Pennsylvania Code are in addition to the requirements of the Clean
Streams Law and its implementing regulations, the Surface Mining
Conservation and Reclamation Act, the Coal Refuse Disposal Control Act,
and the regulatory provisions of Chapters 86 through 90 of the Title 25
of the Pa. Code. In addition to those statutes and regulations,
Pennsylvania clearly states at 290.304(g) that this provision does not
prevent the PADEP from requiring abatement or water supply replacement
prior to or concurrently with the assessment. Accordingly, we have
determined that these provisions are consistent with 30 CFR 816.41.
Therefore, we approve 25 Pa. Code 290.304.
290.305 Abatement Plan
Pennsylvania added this regulation requiring the submission of an
abatement plan to the PADEP when any of the following occur:
<bullet> The aforementioned assessment plan demonstrates the
presence of groundwater or surface water degradation and analysis
indicates an abatement standard will not be met at the compliance
points;
<bullet> Departmental monitoring indicates the exceedance of an
abatement standard even in a situation where an assessment plan has not
been completed.
The following are exceptions to this standard and an abatement plan
will not be required to be implemented:
<bullet> Within ten days after receipt of the results re-sampling
of the affected monitoring points indicates exceedance of an abatement
standard has not occurred and the PADEP concurs.
After a biological assessment of surface water indicates a
detrimental effect to biota, abatement plans must be prepared and
sealed by a professional geologist licensed to practice in
Pennsylvania. The plan must include specific abatement of groundwater
or surface water degradation, techniques to prevent further degradation
and a schedule for implementation.
If abatement procedures are required, compliance must be
demonstrated with at least one of the following standards at the
identified compliance points:
<bullet> In situations where Statewide health standards are
applicable, compliance with the Statewide health standard is required
for that constituent at and beyond 500 feet of the perimeter of coal
ash placement area or at and beyond the property boundary, whichever is
closer;
<bullet> For all constituents, compliance with the background
standard for constituents at and beyond 500 feet of the perimeter of
the coal ash placement area or at and beyond the property boundary,
whichever is closer. Load-based standards at groundwater discharge
points are acceptable under certain circumstances where approval was
otherwise granted by the PADEP;
<bullet> For constituents for which no primary maximum contaminant
levels exist, the risk-based standard applies at and beyond 500 feet of
the perimeter of the placement area or the property boundary, whichever
is closer, if the following conditions are met:
[cir] The risk assessment used to establish the standard assumes
human receptors are present at the property boundary;
[cir] The level is derived in a manner consistent with the PADEP's
Land Recycling Program Technical Guidance Manual or other standard
procedures used in health risk assessments;
[cir] The level is based on scientifically valid studies conducted
in accordance with good laboratory practice standards or other
scientifically valid studies approved by the PADEP; and
[cir] If the constituent is a carcinogen, the level represents a
concentration associated with an excess lifetime cancer risk level of 1
x 10 to the negative fifth power at the property boundary.
When measuring compliance with secondary contaminants with
Statewide health standards or those with no primary maximum contaminant
level, the PADEP may approve a compliance point beyond 500 feet on land
owned by the owner of the coal ash placement area.
The abatement plan must be completed and submitted to the PADEP for
approval within 90 days, unless the deadline is modified in writing.
In the event the plan is deemed inadequate it may be modified and
approved, or the submission of a sufficient modification may be
required by the PADEP.
The abatement plan must be implemented within 60 days of approval.
Should the PADEP determine that the plan is incapable of achieving
the groundwater or surface water protection contemplated in the
approval, the PADEP may issue an order outlining one or more of the
following: Requiring a proposed modification to the abatement plan,
requiring implementation of an abatement plan modified by the PADEP, or
another order the PADEP deems effective for enforcement.
OSMRE Finding: We have determined that the provisions in this
section do not have direct SMCRA counterparts. The Federal regulations
at 30 CFR 773.17(e) require the permittee to minimize any adverse
impacts and 30 CFR 780.21(h) requires the permittee to take remedial
measures. The requirement to prepare and execute an abatement plan will
mitigate adverse conditions that may arise. Accordingly, we have
determined that these provisions are consistent with the Federal
requirements at 30 CFR 773.17(e) and 780.21(h). Therefore, we approve
25 Pa. Code 290.305.
290.306 Recordkeeping
Pennsylvania added this regulation that provides that records,
analyses, and evaluations of monitoring data and groundwater elevations
must be maintained for a minimum of three years after water quality
monitoring ceases. This documentation must be made available to the
PADEP upon request.
OSMRE Finding: The Federal regulation at 30 CFR 840.14 requires
that records provided to the State must be available to the public for
at least five years after expiration of the period during which the
operation is active or covered by a reclamation bond. In 25 Pa. Code
290.301, Pennsylvania provides that quarterly water quality monitoring
will continue and be submitted to the PADEP for a minimum of five years
after final placement or storage of coal ash and annually thereafter
from the end of year five through 10 years after final placement or
storage, unless a longer period is required by the PADEP. Also,
Pennsylvania's regulations require retention of water monitoring data
for a minimum of three years after monitoring ceases, coupled with the
provision that quarterly monitoring will continue for five years after
final placement or storage of coal ash and annually for ten years after
placement. Pennsylvania, in its May 30, 2014, response to us, stated
this it ``holds the monitoring records from the operators
indefinitely'' and it holds ``records for greater than 5 years.''
Accordingly, we have determined that the provisions in this section do
not have direct SMCRA counterparts but are consistent with 30 CFR
840.14. Therefore, we approve 25 Pa. Code 290.306.
290.307 Interim Water Quality Monitoring Requirements
Pennsylvania added this section, which is applicable to coal mine
sites where coal ash has been stored or placed for beneficial use prior
to
[[Page 21570]]
December 11, 2010, and will continue after that date.
Sites not previously subject to water quality monitoring
requirements must submit a water quality monitoring plan whereby the
location and design of down-gradient and up-gradient monitoring points
are identified, and samples are taken quarterly. This plan must be
implemented within one year of the PADEP's approval of the plan.
Sites previously subject to water quality monitoring must ensure
new monitoring points and replacement wells constructed after December
11, 2010, comply with the provisions of this subchapter including
number, location, and depth of monitoring wells and ensure the wells
are properly cased as set forth in this subchapter.
All water quality monitoring after March 11, 2011, must include
analysis of pH, temperature, specific conductance, alkalinity, acidity,
sulfates, chlorides, fluoride, nitrate, nitrite, ammonia, and total
suspended solids as well as analysis of a variety of heavy metals,
static water elevation for monitoring wells, and measured flow of
springs, seeps, and mine discharges.
OSMRE Finding: These water quality provisions, which apply to coal
ash disposal sites in existence prior to December 11, 2010, and
continue to be used for beneficial use after December 11, 2010, cross-
reference water quality provisions at section 290.301(b)(1) (b)(3), (e)
through (g), as well as sections 290.302(b)-(f) and 290.303 of the
Pennsylvania Code. As we stated above, we are approving in this
rulemaking those provisions that apply to newly permitted sites.
Through these provisions, Pennsylvania is ensuring that existing
disposal sites are monitored in the same way as newly permitted sites.
As we noted above, these monitoring provisions are consistent with the
hydrologic information requirements at 30 CFR 780.21. Therefore, we
approve 25 Pa. Code 290.307.
IV. Summary and Disposition of Comments
We asked for public comments and requests for public hearings or
meetings regarding the amendment. We received comments directly from
five individuals and the following entities: The Anthracite Region
Independent Power Producers Association (ARIPPA); CREDO Action (CREDO)
(along with 3,424 individual comments); the Environmental Integrity
Project (EIP), including Citizens Coal Council (CCC), Mountain
Watershed Association, Earthjustice, and the Center for Coalfield
Justice; the Electric Power Generation Association (EPGA); and the
National Mining Association (NMA).
We also received oral testimony from several individuals at the two
public hearings, some in their individual capacity and some in their
representative capacity. At the public hearing in Pottsville,
Pennsylvania, we received testimony from ten individuals. At the public
hearing in Pittsburgh, Pennsylvania, we received testimony from twelve
individuals.
NMA commented that certain citizens' groups wanted us to delay
approval of any State program amendments proposing the placement of
coal ash on surface coal mining operations until after we and the US
EPA promulgated Federal regulations on the placement of coal ash. NMA
opposed this position and stated that there is no good reason to delay
approval of State program amendments, that SMCRA creates a system of
``primacy'' for States, and our task is to evaluate proposed State
program amendments on whether or not the amendment meets the minimum
requirements of SMCRA. The NMA stated it was not taking a position on
the substance of the Pennsylvania amendment, but wanted the State's
primacy respected, and its amendments appropriately considered.
OSMRE Response: We agree with the NMA that we should not delay our
decision making on program amendments proposing the placement of coal
ash on surface coal mining operations.
ARIPPA and EPGA commented that they support the Pennsylvania rules
and that we should approve the program amendment.
OSMRE Response: We are approving the program amendment.
Individual 1 requested that we establish Federal standards for the
disposal of coal ash and to follow the 2006 National Academy of
Sciences recommendations. Additionally, the commenter expressed
environmental concerns regarding a specific mine site in Pennsylvania
and that Pennsylvania needs Federal oversight when it comes to
regulating coal ash. The commenter stated that she was greatly relieved
when we intervened at the mine site.
OSMRE Response: The commenter is correct that SMCRA provides for
enforcement oversight by OSMRE of a State program. Section 503(a) of
SMCRA (30 U.S.C. 1253(a)) permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations within the
State upon approval by us of the State's program; however, this primacy
is subject to OSMRE's oversight and enforcement authority, which is
primarily set forth in section 521 of SMCRA (30 U.S.C. 1271). SMCRA
does not require that there must be Federal regulations in place before
a State program amendment can be submitted to us for review and
decision making. Section 505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR
730.11(a) provide that ``[a]ny provision of any State law or regulation
. . . which provides for the control and regulation of surface mining
and reclamation operations for which no provision is contained in this
Act [SMCRA] shall not be construed to be inconsistent with this Act.''
As stated above in this rulemaking, except for two performance standard
references, there is no direct SMCRA counterpart to Pennsylvania's
regulations on the placement of coal ash on surface coal mining
operations. Furthermore, pursuant to 30 CFR 730.11(a), the Pennsylvania
regulations are not inconsistent with nor do they preclude the
implementation of SMCRA and its regulations.
Individual 2 commented regarding a specific fly ash impoundment
located in Beaver County, Pennsylvania, that the impoundment's fly ash
blows in the wind and that it has no liner. Also, she is concerned
about the health of individuals.
OSMRE Response: We believe that the Pennsylvania regulations
protect individuals living near surface coal mining operations using
coal ash. The regulations include a chemical and physical certification
program to ensure compliance with beneficial use requirements,
standards for the location and type of coal ash that is permitted, and
water quality monitoring to ensure that any unforeseen impacts on water
quality are addressed promptly and thoroughly. Furthermore, the ash
impoundment referenced in this comment is not located on a coal mining
site and, therefore, is outside the scope of this amendment review.
CREDO provided 3,424 individual comments. All of the comments
wanted strong Federal rules on the disposal and management of coal ash
and did not want us to approve the Pennsylvania regulations because of
concerns that the amendment would put drinking water supplies at risk.
Some individuals had additional comments such as: A request to not
allow abandoned coal mines to hold coal ash because these abandoned
mines were not designed to hold coal ash; concerns related to
hydrofracking activities; a request to delay our approval of the
Pennsylvania amendments until after US EPA regulations go into effect;
concerns with the fact that some coal ash contains heavy metals--
including arsenic,
[[Page 21571]]
mercury, and selenium--that cause serious health problems; a suggestion
to contain coal ash in specially designed pits to keep it out of
groundwater; a request to test each site to prevent leakage into water
sources; a suggestion that coal ash should be encased in sealed
abandoned mines that will hold the ash; a proposal that coal ash should
be contained and methods of detecting leakage employed at each site;
general statements that Pennsylvania should move away from fossil fuels
to reduce its carbon emissions; a request that coal ash be vitrified
instead of placed at mining sites; and a statement that the proposed
amendments interferes with the Pennsylvania constitution, which gives
people the right to clean air and water.
OSMRE Response: The Pennsylvania regulations for abandoned coal
mines were not submitted as a program amendment, so they are outside
the scope of this amendment and require no further response.
Hydrofracking activities are also outside the scope of this amendment
and requires no further response. We disagree that we should wait until
after the US EPA regulations are in place because SMCRA does not
require that there must be Federal regulations in place before a State
program amendment can be submitted to us for review and decision
making. In fact, section 505(b) of SMCRA specifically provides for
those situations where there are no SMCRA counterparts. On April 17,
2015, US EPA published a final rule regarding the disposal of CCR from
electric utilities. (80 FR 21302CCR) In US EPA's preamble to the April
17, 2015, final rule, US EPA stated that its ``rule does not apply to
CCR placed in active or abandoned underground or surface coal mines.''
(80 FR 21341) Pennsylvania's program amendments require a chemical
analysis for heavy metals such as arsenic, mercury, and selenium and
has established maximum acceptable leachate levels for metals. We
disagree that coal ash must be placed into specially designed pits to
prevent groundwater infiltration. We have determined that incorporation
into the soil or placement in the coal pit, in combination with the
coal ash certification described in section 290.201 of the Pennsylvania
Code, the restrictions on placement described in sections 290.103 and
290.104 of the Pennsylvania Code, and the water monitoring protocols
described in sections 290.301 through 290.305 of the Pennsylvania Code
are sufficient to prevent groundwater infiltration. We agree that sites
should be tested to prevent contamination of water sources, and we have
determined that the water monitoring protocols described in sections
290.301 through 290.305 of the Pennsylvania Code are sufficient.
Additionally, section 290.101(e) of the Pennsylvania Code prohibits,
except in limited circumstances, the placement of coal ash within eight
feet of a water table and prohibits the use of coal ash that will cause
water pollution. Encasement of coal ash in abandoned mines is outside
the scope of this amendment and requires no further response. The
carbon emissions produced by coal combustion are outside the scope of
this amendment and requires no further response. Vitrification of coal
ash as a possible means for disposing of coal ash is outside the scope
of this amendment and requires no further response. Finally, we
disagree that the amendment would interfere with the Pennsylvania
constitution's requirements for clean air and water. Pennsylvania has
added requirements and restrictions described above that protect air
and water quality.
Individual 3 commented on two specific sites that the proposed rule
does not adequately protect residents from fugitive dust emissions
emanating from coal ash. She also commented that we should establish
SMCRA regulations for coal ash use instead of allowing Pennsylvania to
establish a State rule.
OSMRE Response: We disagree that the proposed rule does not
adequately address fugitive dust. The proposed rule specifically
requires that operators must control fugitive dust to the highest
possible extent, as described at sections 290.103(c)(8) and
290.104(f)(8) of the Pennsylvania Code. Further, the specific ash
impoundments mentioned by the commenter are not located on coal mining
sites and are therefore outside of the scope of this amendment. In
addition, please see our above responses to comments about promulgating
Federal rules implementing SMCRA before a State program amendment can
be submitted to us for decision making.
EIP commented that Federal standards for coal combustion waste
should be established before we approve a State program amendment;
thus, they noted that we must let US EPA rulemaking conclude before
approving this amendment. EIP also opined that SMCRA requires that the
Secretary not approve a State program until US EPA has disclosed its
views on the State program. Other EIP comments include suggestions
that: Water monitoring should occur for 30 years beyond the closure of
a coal mine site that accepts coal ash; water monitoring should occur
when there are 10,000 tons of coal ash placed on a mine site instead of
100,000 tons as currently proposed by Pennsylvania; coal mine sites at
the uppermost point of a water gradient should still use an up-gradient
monitoring well during post-closure monitoring; property deeds should
note that coal ash was used as structural fill; the public should be
notified of all projects that propose the use of coal ash for
structural fill or placed on abandoned mine sites; the State should
require a specific standard for the control of fugitive dust such as
the one US EPA proposed; there should be public notice and comment when
coal ash is used as a soil amendment and should also require a
monitoring plan; there should be stricter requirements for the ``other
beneficial uses'' described in section 290.106 of the Pennsylvania
Code; and there should be upfront bonding requirements that are
sufficient to cover long-term monitoring and potential remediation
projects.
OSMRE Response: Please see our above responses to the comments
requesting that Federal regulations by both us and US EPA be finalized
before we issue a decision on a State program amendment. As discussed
below, we did solicit US EPA's comments and concurrence that are
discussed in this final rule. We disagree that water monitoring should
occur for 30 years beyond closure of a coal mine site that uses coal
ash. The monitoring requirements in the proposed rule do not replace
the monitoring requirements provided for in Pennsylvania's existing
approved program and described in our regulations, and the coal ash
will be certified as safe for use in advance, as described at 25 Pa.
Code 290.201. Further, any indications of water quality degradation in
the initial ten-year monitoring period will necessitate abatement
measures as required by section 290.305 of the Pennsylvania Code.
We disagree that water monitoring should be required for
applications of more than 10,000 total tons of coal ash on the coal
mining activity site. The certification program incorporated into
Pennsylvania's proposed rule prohibits the usage of ash that includes
certain amounts of contaminants. Using ash certified in this manner
eliminates the need for monitoring under the proposed thresholds of
10,000 tons of coal ash per acre or 100,000 total tons at the site, as
described at 25 Pa. Code 290.101(d). Additionally, Pennsylvania may
require water quality monitoring for lesser quantities of coal ash if
the site conditions warrant.
[[Page 21572]]
We disagree that sites occupying the uppermost portion of a water
gradient should require at least one upgradient monitoring well. Such
sites have no upgradient monitoring points available, and the amendment
requires the use of a representative downgradient monitoring well that
will detect any adverse effects, as described at 25 Pa. Code 290.301.
EIP's comments regarding deed notations for structural fills and
that the public should be notified of all projects that propose use of
coal ash for structural fill or placed on abandoned mine sites are
outside the scope of this amendment. Because Pennsylvania has not
submitted its regulations at sections 290.102 (structural fill) or
290.105 (abandoned mine sites) of the Pennsylvania Code to us for
review, these comments address regulations that are outside the scope
of our decision making, and they require no further response at this
time.
We disagree that the proposed rules for fugitive dust are too
vague, and that a specific standard should be added to the proposed
rule. Pennsylvania's proposed regulations at sections 290.103(c)(8) and
290.104(f)(8) of the Pennsylvania Code require that offsite dispersion
of dust from coal ash must be minimized. Pennsylvania, in its May 30,
2014, letter clarified that coal ash is ``subject to the existing
regulations relating to air resources protection. Sections 87.137,
88.114, 88.205, 88.317, 89.64 and 90.149 provide for the required
protections.'' The Federal regulations at 30 CFR 816.95 require that
exposed surface areas must be protected and stabilized to effectively
control air pollution attendant to erosion. Thus, Pennsylvania's
proposed regulations are not inconsistent with the SMCRA regulation.
The proposed Pennsylvania regulation at section 290.104(d) of the
Pennsylvania Code requires that a coal operator who uses coal ash on a
coal mining site must provide public notice pursuant to sections 86.31
and 86.54 and that coal ash used as a soil substitute or soil additive
will be part of the approved reclamation plan. Pennsylvania has
proposed a water monitoring plan that is not inconsistent with the
Federal regulations implementing SMCRA. There is no SMCRA regulation
requiring monitoring of soil placement or soil additive.
EIP's comment that there should be stricter requirements for
``other beneficial uses'' in section 290.106 is outside the scope of
our review because Pennsylvania has not submitted its regulations at
290.106 (other beneficial uses) to us for approval. Thus, this comment
requires no further response.
We disagree that additional financial assurance should be required
for projects using coal ash. Pennsylvania clarified in its May 30,
2014, letter to us that the beneficial uses of coal ash at coal mining
sites are subjected to bonding regulations described at 25 Pa. Code
Chapter 86, Subchapter F, which are part of the approved Pennsylvania
program. The only SMCRA regulations requiring financial assurance are
the bonding requirements of 30 CFR part 800. Because the amendment
includes several measures, such as the coal ash certification described
at 25 Pa. Code 290.201, the restrictions on placement near the water
table and surface water throughout the amendment, and the water quality
monitoring protocols described at sections 290.301 through 290.305, we
have determined those measures protect water quality and allow
revegetation, and the existing Pennsylvania bonding regulations are
sufficient to ensure funding for reclamation if bond forfeiture occurs.
Individual 4 commented that the proposed rule at section 290.303 of
the Pennsylvania Code does not require background water quality
sampling down-gradient of the coal mining site; that the monitoring
does not include measurements of radioactivity; that comparing water
quality data from residential wells and monitoring wells is inaccurate
because the monitoring wells filter out the contaminants while the
residential well does not filter the contaminants before the residents
drink the water; that monitoring does not include secondary
contaminants, including iron and manganese; that use of coal ash in
reclamation produces off-gassing of carbon dioxide; and that the waiver
for water quality monitoring for less than 100,000 tons of coal ash is
too broad.
OSMRE Response: We disagree that the proposed rule does not require
background water quality sampling down-gradient of the use site.
Section 290.302 of the Pennsylvania Code explicitly requires three
down-gradient groundwater monitoring points. Additionally, Section
290.301 of the Pennsylvania Code explicitly requires that each water
quality monitoring plan will include a minimum of 12 background samples
from each monitoring point, taken at monthly intervals before the
placement of coal ash.
SMCRA and its implementing regulations do not require monitoring
for radioactivity. State regulatory programs must be as effective as
the SMCRA implementing regulations but do not have to exceed them. See
also, 30 CFR 730.11.
We disagree that the proposed rule intends to compare residential
wells with monitoring wells. The background water quality sampling
required in section 290.301 of the Pennsylvania Code calls for a
minimum of 12 background samples that conform to monitoring protocols
written by the US EPA. Further, the use of filters in the monitoring
wells does not reduce the accuracy of the readings, notwithstanding the
lack of filters in many residential wells. The readings from the
monitoring wells are intended to indicate changes in chemical
constituent concentrations over time, not to compare directly with
residential water. Readings from monitoring wells are also compared to
national and State water quality standards. Those water quality
standards are meant to be compared to samples acquired through US EPA
monitoring standards, including properly filtered monitoring wells.
SMCRA and its implementing regulations do not require monitoring
for secondary contaminants. As noted previously, state regulatory
programs must be as effective as the SMCRA implementing regulations but
do not have to exceed them.
SMCRA and its implementing regulations do not address off-gassing,
so we cannot require Pennsylvania to require regulation of off-gassing
from reuse of coal ash.
We disagree that the proposed amendment must include water quality
monitoring for projects using less than 100,000 total tons of coal ash,
or 10,000 tons per acre. The certification program described at section
290.201 prohibits the usage of ash that contains certain amounts of
contaminants. Using ash certified in this manner is not inconsistent
with the SMCRA regulations and Pennsylvania requirements at sites using
less than 100,000 total tons of coal ash, or less than 10,000 tons per
acre, as described at section 290.101(d). Additionally, the
Pennsylvania Code at section 290.101(d), provides that the PADEP may
require water quality monitoring for lesser tonnage if warranted by
site conditions.
Individual 5 commented that the PADEP in general does not
adequately measure background levels of contamination before allowing
waste deposition; that a Centers for Disease Control and Prevention
(CDC) study of Polycythemia Vera cancer clusters in northeastern
Pennsylvania indicated coal ash disposal as a correlated factor; and
that the CDC study methodology
[[Page 21573]]
underestimated the potential correlation by not appropriately
calculating fugitive emissions and by not including a specific ash
disposal site. Individual 5 cited section 2.3 of the Betty Kester
Alliance for a Healthy Future's letter to the Agency for Toxic
Substances and Disease Registry for the fugitive emissions claim, and
section 4.2 of that letter for the ash disposal site claim.
OSMRE Response: The Pennsylvania approved program contains
monitoring protocols that are consistent with the Federal standards at
30 CFR 780.21.
The CDC study indicates that although coal ash disposal does occur
in the study area, it is not indicated as a causal agent. See CDC's
fact sheets entitled, Exposure assessment of groundwater for the
polycythemia vera cluster in northeast Pennsylvania, page 2 <a href="https://www.atsdr.cdc.gov/sites/polycythemia_vera/docs/fact_sheet_exposure_assessment_of_groundwater_for_the_polycythemia_vera_cluster_in_northeast_pennsylvania.pdf">https://www.atsdr.cdc.gov/sites/polycythemia_vera/docs/fact_sheet_exposure_assessment_of_groundwater_for_the_polycythemia_vera_cluster_in_northeast_pennsylvania.pdf</a>), and Environmental exposure
assessment of air pollutants for the polycythemia vera cluster in
northeastern Pennsylvania, page 3 (<a href="https://www.atsdr.cdc.gov/sites/polycythemia_vera/docs/fact_sheet_environmental_exposure_assessment_of_air_pollutants_for_the_polycythemia_vera_cluster_in_northeast_pennsylvania.pdf">https://www.atsdr.cdc.gov/sites/polycythemia_vera/docs/fact_sheet_environmental_exposure_assessment_of_air_pollutants_for_the_polycythemia_vera_cluster_in_northeast_pennsylvania.pdf</a>).
Public Hearings
Pottsville
Individual 4 commented that the use of coal ash in mine reclamation
cannot improve water quality; that coal ash is an industrial waste;
that the proposed regulations do not include a requirement for
background testing on residential wells; that the monitoring wells will
not protect drinking water supplies because they use filter packs that
residential wells lack; that the monitoring protocols and
specifications are ineffective; that the proposed rule at section
290.303 of the Pennsylvania Code does not require background water
quality sampling down-gradient of the coal mining site; that the
monitoring does not include measurements of radioactivity; that
monitoring does not include secondary contaminants, including iron and
manganese; and that use of coal combustion ash in reclamation produces
off-gassing of carbon dioxide.
OSMRE Response: Regarding the comment that coal ash is an
industrial waste, we disagree that coal ash meets the common
understanding of the term ``industrial waste'' when used as structural
fill or as an alkaline agent at surface mining sites. Industrial waste
is commonly understood to include substances with no potential for
reuse and that are landfilled or otherwise contained. The use of coal
combustion byproducts described in the proposed regulations would
preclude the byproduct from being considered waste.
The rest of the individual's testimony was the same as his written
comments. For our response to the rest of the testimony, please see our
response above to the Individual 4 written comments.
Individual 6 commented that he was concerned about the impacts of
the amendment on local well drinking water; that if the use is
beneficial, no permit is required; there was inadequate public notice
on a particular permit because the coal mine site borders two counties
and the permit was only noticed in one paper; PADEP does not
sufficiently deliberate before approving coal ash impoundments; and
that Federal oversight of the State program is necessary.
OSMRE Response: We have determined that the amendment includes coal
ash certification at 25 Pa. Code 290.201 and water quality monitoring
at sections 290.301 through 290.305, and that these provisions protect
water quality and are consistent with the Federal regulations at 30 CFR
780.21, 816.41, and 816.42. Please see our Findings for more
explanation. Individual 6 is correct that a solid waste disposal permit
is not required because it is not considered a solid waste if there is
a beneficial use of coal ash. The particular permit referred to by the
commenter has a Chapter 290 beneficial use permit. Regarding the public
advertisement of that operation's proposed permit, section 290.104(d)
requires public notice pursuant to sections 86.31 or 86.54 of the
Pennsylvania Code. Those two sections, sections 86.31 and 86.54, are
already part of Pennsylvania's approved program and not part of the
program amendment that we are considering; thus, no further response is
required. Coal ash impoundments are no longer authorized under
Pennsylvania's coal mining program, as these are not approved
beneficial uses. We agree that there is Federal oversight of State
programs. We already inspect State regulatory programs and enforce
SMCRA and its implementing regulations, when necessary.
Individual 7 read the commentary of a soil scientist, who wrote
that section 290.201 of the Pennsylvania Code erroneously labels
several contaminants, including arsenic, selenium, and manganese, as
metals and cations, and as a result allows too high a concentration in
the certified coal ash. Individual 7 also stated that Pennsylvania
accepts industry science on coal ash without verification, and that
Federal oversight on the State program is needed.
OSMRE Response: The certification standards at section 290.201 of
the Pennsylvania Code do not classify arsenic and manganese as metals
and provide a separate maximum leachate amount for selenium. Our
regulations do not have a maximum acceptable leachate level. Also,
Pennsylvania, in its May 30, 2014, letter to us, clarified that the
basis of its list is Table 3.2 in Managing Coal Combustion Residues in
Mines produced by the National Research Council (NRC) in 2006.
Pennsylvania went on to say that it added parameters to the NRC list
such as nitrate, nitrite, ammonia, the major cations and anions, and
fluoride. Fluoride was added in response to a comment during
Pennsylvania's own comment period. Please see our above response to the
comment on Federal oversight of the Pennsylvania program.
A representative of the Electropower Generation Association
commented that the use of coal ash reduces landfill dumping on
undisturbed sites, that coal ash can mitigate acid mine drainage, and
that because of the large volume of coal ash produced in the State they
worked with the State environmental regulators to come up with a
beneficial program.
OSMRE Response: We acknowledge the group's support of the proposed
amendment and no further response is required.
Individual 8 commented that a coal ash impoundment called the
Hazleton Project presents a danger to several streams in the
Susquehanna River watershed; that dust emissions from fly ash
impoundments have caused air quality problems; that the placement of
coal ash puts well drinking water at risk; and that coal ash needs to
be regulated at the Federal level.
OSMRE Response: Please see our above responses to comments
regarding coal ash impoundments; the safeguards in the amendment that
protect water quality, air quality and drinking water supplies; and why
the Pennsylvania program amendment can be approved without a SMCRA
counterpart specifically relating to coal ash.
A representative of the CCC commented that some elements of the
amendment were important improvements, such as the prohibition on
placement of coal ash within eight feet of water tables; monitoring and
testing for more trace metals and other parameters in the leachate;
collection of
[[Page 21574]]
a minimum of 12 months baseline of water monitoring data prior to the
placement of coal ash; quarterly monitoring after coal ash placement;
and ten years of monitoring after the cessation of ash placement. The
CCC also commented that significant improvements are still needed,
including requiring use of liners in landfills and surface impoundments
for coal ash placement. The CCC also commented that Federal oversight
of coal ash placement is needed, and that SMCRA framers did not
envision coal mining sites as major ash disposal sites.
OSMRE Response: Landfills and surface impoundments are outside of
the scope of this amendment, so no further response is required. Please
see our above responses to comments regarding Federal oversight of the
Pennsylvania program and provisions that are not included within SMCRA
or its implementing regulations.
Individual 9 commented that the high incidence of polycythemia vera
in the eastern Pennsylvania region may be a result of unlined coal ash
impoundments, fugitive dust emissions, and the many Superfund sites and
illegal dumping practices prevalent in the area.
OSMRE Response: Please see our above responses to comments on the
incidence of polycythemia vera in the eastern Pennsylvania region and
on fugitive dust emissions. The comments regarding impoundments,
Superfund sites, and illegal dumping are outside the scope of this
amendment and require no additional response.
Individual 10 commented that Federal rules on coal ash placement
are needed because individual States are too receptive to industry
influence to ensure adequate environmental protection.
OSMRE Response: Please see our response above to comments
concerning approval of Pennsylvania's proposed coal ash beneficial use
amendment before the promulgation of SMCRA regulations for coal ash.
Pittsburgh
A representative of the Center for Coalfield Justice read testimony
on behalf of Individual 10 that nationwide Federal regulations should
be used to regulate use of coal ash so that the ash is not shipped to
the State with the weakest regulations; that several components of the
West Virginia coal ash use program are deficient; and that coal ash
studies have shown poor potential for neutralization of acid mine
drainage.
OSMRE Response: Please see our response to comments above regarding
the absence of SMCRA regulations for coal ash. The West Virginia coal
ash use program is outside the scope of this amendment and requires no
additional response. We disagree that the amendment will not improve
acid mine drainage. The coal ash certification described at 25 Pa. Code
290.201 includes a Neutralization Potential Test, and the rules
concerning use of coal ash as a soil substitute at section 290.103
require a minimum of 100 parts per thousand of calcium carbonate
equivalency.
Individual 11 commented that the PADEP dismisses the health
concerns of citizens regarding impoundments of coal ash, and that
Federal regulations are needed to ensure proper protection of public
health.
OSMRE Response: Please see our responses to comments above
regarding coal ash impoundments and regarding the approval of the
amendment in the absence of SMCRA regulations for coal ash.
Individual 12, the legal director at the Center for Coalfield
Justice, commented that Federal regulations on use of coal ash are
necessary for adequate environmental protection; that the monitoring
threshold in section 290.101(d) of the amendment is too high; and that
the amendment does not afford sufficient public participation from
communities near proposed coal ash reuse sites.
OSMRE Response: Please see our responses to the comments above
concerning the approval of the amendment in the absence of SMCRA coal
ash regulations and the water quality monitoring thresholds in section
290.101 of the amendment. We disagree that public notice is not
afforded in coal ash beneficial use projects. Section 290.104 of the
amendment requires that public notice must be given for any coal ash
utilization at a coal mining site. Furthermore, all documents related
to coal ash use will be retained by the PADEP and available to
interested parties upon request.
A representative of Earthjustice commented, on behalf of Individual
13, that fugitive dust from transportation of coal ash is causing
serious health problems; that Federal regulations are required to
ensure adequate protection of public health; and that the PADEP does
not adequately enforce its existing regulations.
OSMRE Response: Please see our responses to comments above
regarding fugitive dust and approval of the amendment in the absence of
Federal regulations. The PADEP's enforcement of its regulations is
outside the scope of this notice, which concerns the amendment and its
adherence to SMCRA, and no further response is required, except to note
that, under 30 CFR 733.12, we annually evaluate the administration of
the State program to ensure compliance with SMCRA and its regulations.
Individual 14 commented that Federal regulations should be
published before the proposed Pennsylvania amendment is approved; that
the US EPA's proposed rules on coal ash disposal should be the source
for developing other regulations; that we must seek US EPA comments and
provide those comments to the public; that we should restrict material
damage to the hydrologic balance outside of the permit area; that the
amendment is too vague in its regulation of fugitive dust emissions,
and that it should use a specific limit of 35 micrograms instead of
requiring `minimization' of fugitive dust emissions; and that the
amendment does not require adequate groundwater monitoring, because
sites without an upgradient monitoring point available should use a
representative sampling site instead.
OSMRE Response: Please see our responses to comments above
concerning approval of the amendment in the absence of Federal
regulations and the US EPA's regulations on coal ash use. Moreover, we
have received concurrence from the US EPA concerning this amendment;
please see below the Federal Agency Comments subsection. The amendment
at section 290.104 requires compliance with Pennsylvania's approved
program. Pennsylvania's approved program restricts material damage to
the hydrologic balance outside of the permit area (see 25 Pa. Code
87.101(a)). The water quality monitoring protocols of this amendment,
at sections 290.301 through 290.305, require operators to monitor water
quality downgradient from the placement site and abate any increases in
contaminants. The requirement to minimize emissions, in combination
with the time limits on coal ash storage before application, as
described in sections 290.103 and 290.104, are consistent with the
SMCRA implementing regulations. The Federal regulation at 816.95(a)
requires all exposed surface areas to be protected and stabilized to
control air pollution. The Federal regulations implementing SMCRA do
not have specific dust limitations, so there is no requirement under
the SMCRA regulations for a 35-microgram limit, instead of the
requirement to minimize fugitive dust emissions described in sections
290.103 and 290.104 of this amendment. We disagree that that the
amendment does not require a representative sample of
[[Page 21575]]
baseline groundwater quality for sites at the most upgradient location.
Section 290.302(a)(1) requires that for sites occupying the most
upgradient position, representative samples must be taken from
downgradient locations sufficient to determine the extent of any
adverse effects.
A representative of the Pennsylvania Coal Alliance (PCA) commented
that PCA supports Pennsylvania's amendment, that it recycles a product
that protects public health and the environment; and that the process
of writing the regulations has been open and transparent.
OSMRE Response: We acknowledge this group's support of the proposed
amendment and no further response is required.
Individual 15 commented that Federal rules and Federal oversight
are needed because Pennsylvania cannot adequately regulate the storage
and use of coal ash, using his experience as a former mayor of a town
near an ash impoundment as evidence.
OSMRE Response: Please see our responses to comments above
regarding approval of the amendment in the absence of Federal
regulations and our oversight of the Pennsylvania program.
A representative of the Center for Coalfield Justice commented, on
behalf of Individual 16, that fugitive dust from coal ash disposal
sites has caused serious health issues; that the PADEP does not enforce
its existing regulations; and that Federal rules should be in place
before the amendment is passed.
OSMRE Response: Please see our responses to comments above
regarding fugitive dust emissions and coal ash impoundments,
Pennsylvania's enforcement of its existing regulations, and approval of
the amendment in the absence of Federal regulations.
A representative of the Mountain Watershed Association commented,
on behalf of Individual 17, that fugitive dust from coal ash disposal
sites has caused serious health issues; that the PADEP does not enforce
its existing regulations, especially concerning the transport of coal
ash on windy days; and that we should pass Federal rules on use of coal
ash before allowing State rules to come into effect.
OSMRE Response: Please see our responses to comments above
regarding fugitive dust emissions and coal ash impoundments,
Pennsylvania's enforcement of its existing regulations, and approval of
the amendment in the absence of Federal regulations.
A representative of the Mountain Watershed Association commented
that the use of coal ash for treatment of acid mine drainage
necessarily entails that no liners will be used, and that this creates
an unacceptable environmental risk; and that Federal rules need to be
in place before State programs are approved, that if there are not
Federal standards then people in Pennsylvania will be affected by West
Virginia because it will not have the same standards as Pennsylvania as
States will ship coal ash to the location with the weakest regulations.
OSMRE Response: Please see our responses to the comments above
regarding the use of liners in coal ash use and approval of the
amendment in the absence of Federal regulations.
A representative of the Center for Coalfield Justice commented, on
behalf of Individual 18, that coal ash impoundments have harmed water
quality near LaBelle, Pennsylvania; that fugitive dust emissions from
coal ash impoundments are causing public health problems; that coal ash
impoundments are causing harm to local groundwater supplies; concerns
about structural failures of impoundments like the Tennessee Valley
Authority facility in Kingston, Tennessee; and that Federal rules are
required because States cannot adequately protect the environment and
public health.
OSMRE Response: Please see our responses to comments above
regarding coal ash impoundments, fugitive dust emissions, and approval
of the amendment in the absence of Federal regulations.
Individual 19 commented that Federal regulations on the use of coal
ash are necessary in order for state regulatory programs to be
effective; and that there is strong evidentiary basis to enact policy
grounded in science for Federal rulemaking.
OSMRE Response: Please see our response to the comment above
regarding approval of the amendment in the absence of SMCRA regulations
for coal ash.
Federal Agency Comments
U.S. Environmental Protection Agency (US EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from the US EPA for those provisions of a program amendment
that relate to air or water quality standards issued under the
authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean
Air Act (42 U.S.C. 7401 et seq.). This amendment relates to air and
water quality standards, so on June 7, 2012, we requested comments and
concurrence from the US EPA (Administrative Record No. PA 894.04).
OSMRE received a letter from the US EPA dated October 18, 2012
(Administrative Record No. PA 894.23), that granted concurrence and
submitted the following comments.
1. The implementation of the amendment must comply with the Clean
Water Act (CWA), Safe Drinking Water Act (SDWA), Clean Air Act (CAA),
and the Solid Waste Disposal Act;
2. The lifetime cancer risk indicated at 290.305(c)(3)(iv) is at 1
x 10<SUP>-</SUP>\5\ while Pennsylvania's water quality standards at 25
Pa. Code 93.8 are at 1 x 10<SUP>-</SUP>\6\.
3. The use of the term ``water supply'' should be clarified in
section 290.102(g)(2).
4. Pennsylvania should clarify what are public and private water
supplies in section 290.304, while previous sections of Chapter 290 do
not make a distinction and uses the term ``water supply.''
5. Pennsylvania should consider restricting use of coal ash within
300 feet of occupied dwellings for structural fills allowed under
section 290.102.
6. The coal ash certification and monitoring should include any
constituent that has been identified as an issue or potential issue
such as bromide.
7. US EPA would like clarification on whether the 100-foot buffer
around sinkholes described in section 290.102(g)(4) was related to
runoff controls for conduits to groundwater.
8. The assessment and abatement plans described in sections 290.304
and 290.305 should use the criteria from Pennsylvania's water quality
standards at 25 Pa. Code Chapter 93.
9. If placement of coal ash in abandoned coal mines may constitute
injection subject to the Underground Injection Control Federal
requirements at 40 CFR part 144, then authorization from the US EPA
would be required.
OSMRE Response: In our response, any reference to a Pennsylvania
response refers to the May 30, 2014, letter from Pennsylvania to us.
With regard to other Federal environmental laws, Pennsylvania's
response stated that ``there is nothing in Chapter 290 that supersedes
the requirements of the CWA, CAA, SDWA, SMCRA or the National Pollution
Discharge Elimination System permitting program under the CWA.
Implementation of Chapter 290 is in the context of the existing
statutory and regulatory framework.''
In that same response, Pennsylvania addressed the different cancer
risk levels stating that ``the risk level used in section 290.305 is
based upon the [regulations for Administration of Land
[[Page 21576]]
Recycling Program found at 25 Pa. Code 250]. The Medium Specific
Concentrations (MSCs) relating to remediation of soil and groundwater
under the Statewide health standard must be calculated with a lifetime
cancer risk between 10<SUP>-</SUP>\4\ and 10<SUP>-</SUP>\6\ (pursuant
to section [250.304 and 250.305]). The promulgated MSCs are calculated
based on the median risk level of 10<SUP>-</SUP>\5\. Under the
[regulations for the Administration of] Land Recycling Act Program, any
regulated discharge into surface water must comply with applicable laws
and regulations relating to surface water discharges (pursuant to
section [250.309]), so if there is a discharge to surface water the
remediation must meet water quality standards.''
US EPA's two comments regarding section 290.102 and the term
``water supply'' and restricting coal ash use near dwellings will not
be addressed because section 290.102 is not part of the program
amendment and thus outside the scope of our review.
Regarding US EPA's comment on clarifying the difference between
public and private water supplies, the Federal regulations implementing
SMCRA do not define public or private water supplies, so Pennsylvania's
terminology regarding water supplies is not inconsistent with the SMCRA
regulations. Pennsylvania responded to US EPA's comment that ``water
supply'' is defined in Chapters 87 and 88, that public water supplies
are those systems providing water for human consumption to at least 15
service connections or serves an average of at least 25 individuals
daily for at least 60 days per year. Pennsylvania also said that a
private water supply is one that has less than 15 connections and is
not regulated by either the PADEP or US EPA. Additionally, US EPA's
comment that coal ash certification and monitoring should include any
constituent that has been identified as an issue or potential issue
such as bromide was addressed by Pennsylvania. Pennsylvania stated that
``[i]f other parameters would be identified as ``of concern,'' section
290.201(b)(10) provides for other physical and chemical testing if
needed. The beneficial use of coal ash program operates under
applicable mining regulations, which include language and flexibility
for additional testing, such as at section 87.116 . . . and section
87.117. . . which state `The Department may require the operator to . .
. monitor additional parameters beyond the minimum specified in this
section.' All mines must comply with section 86.37 including the
provision that the applicant demonstrate `that there is no presumptive
evidence of potential pollution of the waters of the Commonwealth.'''
US EPA's comment on whether the 100-foot buffer around sinkholes
described in section 290.102(g)(4) was related to runoff controls for
conduits to groundwater. As noted above, section 290.102 is not part of
the amendment and we are not addressing comments outside the scope of
the amendment.
Regarding US EPA's comment that sections 290.304 and 290.305 should
use the water quality criteria standards found at 25 Pa. Code Chapter
93, Pennsylvania responded that the ``Chapter 93 criteria are
applicable to some aspects of an assessment plan, they are not the only
standard to be used for comparison. Many remining sites where coal ash
is beneficially used for reclamation are in watersheds that are
impaired, so the criteria in Chapter 93 are applicable to surface
waters. The assessment plan is likely to include an evaluation of
ground water. Typically, the assessment plan will rely on background
water quality data in order to evaluate compliance.''
Last, US EPA's comment on the placement of coal ash in abandoned
mine lands that may be considered an injection will need to comply with
US EPA injection regulations is outside the scope of this program
amendment. The regulations for use at abandoned coal mine lands are not
part of the program amendment and we are not responding to this
comment.
Pennsylvania's response to the US EPA comments provides more
information regarding its approved program. We have determined that
Pennsylvania's proposed regulations are in accordance with SMCRA and
not inconsistent with the Federal regulations implementing SMCRA. Based
on our Findings and that the amendment received concurrence from the US
EPA, we are approving the amendment.
V. OSMRE's Decision
Based on the above findings, we are approving Pennsylvania's
amendment that was submitted March 13, 2012.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 938, which codify decisions concerning the Pennsylvania
program. In accordance with the Administrative Procedure Act, this rule
will take effect 30 days after the date of publication. Section 503(a)
of SMCRA requires that the State's program demonstrate that the State
has the capability of carrying out the provisions of the Act and
meeting its purposes. SMCRA requires consistency of State and Federal
standards.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. Pursuant to OMB guidance, dated October
12, 1993, the approval of state program amendments is exempt from OMB
review under Executive Order 12866. Executive Order 13563, which
reaffirms and supplements Executive Order 12866, retains this
exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior (DOI) has reviewed this rule as
required by Section 3 of Executive Order 12988. DOI has determined that
this Federal Register notice meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because Section 3 focuses on the quality of Federal
legislation and regulations, DOI limited its review under this
Executive Order to the quality of this Federal Register notice and to
changes to the Federal regulations. The review under this Executive
Order did not extend to the language of the state regulatory program or
to the program amendment that the Commonwealth of Pennsylvania drafted.
[[Page 21577]]
Executive Order 13132--Federalism
This rule has potential Federalism implications as defined under
Section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States. Pennsylvania, through its approved
regulatory program, implements and administers SMCRA and its
implementing regulations at the state level. This rule approves an
amendment to the Pennsylvania program submitted and drafted by the
State, and thus is consistent with the direction to provide maximum
administrative direction to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under
DOI's consultation policy and under the criteria in Executive Order
13175 and have determined that it has no substantial direct effects on
federally recognized Tribes or on the distribution of power and
responsibilities between the Federal government and Tribes. Therefore,
consultation under DOI's tribal consultation policy is not required.
The basis for this determination is that our decision is on the
Pennsylvania program that does not include Tribal lands or regulation
of activities on Tribal lands. Tribal lands are regulated independently
under the applicable, approved Federal program.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866, and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the DOI Departmental Manual,
part 516, section 13.5(A), State program amendments are not major
Federal actions within the meaning of section 102(2)(C) of the National
Environmental Policy Act (42 U.S.C. 4332(2)(C)).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14). This action is not subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject
of this rule, is based upon Federal regulations that set performance
standards for hydrologic-balance protection during surface coal mining
and reclamation operations, for which an economic analysis was prepared
and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, DOI relied upon the data and
assumptions for the related Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based upon an analysis of Federal regulations that set performance
standards for hydrologic-balance protection during surface coal mining
and reclamation operations, which were determined not to impose an
unfunded mandate. Therefore, a statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic-Appalachian Region.
For the reasons set out in the preamble, 30 CFR part 938 is amended
as set forth below:
PART 938--PENNSYLVANIA
0
1. The authority citation for Part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. In Sec. 938.15 amend the table by adding an entry for ``March 13,
2012'' in chronological order by ``Date of final publication'' to read
as follows:
938.15 Approval of Pennsylvania regulatory program amendments.
* * * * *
[[Page 21578]]
------------------------------------------------------------------------
Original amendment Date of final
submission date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
March 13, 2012.............. 4/12/2022 25 Pa. Code 287.1
(Residual Waste
Management-General
Provisions), 290.1,
290.101, 290.103,
290.104, 290.107,
290.201, 290.202,
290.203, 290.301,
290.302, 290.303,
290.304, 290.305,
290.306, 290.307
(Beneficial Use of Coal
Ash).
------------------------------------------------------------------------
[FR Doc. 2022-07660 Filed 4-11-22; 8:45 am]
BILLING CODE 4310-05-P
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