[Federal Register Volume 77, Number 133 (Wednesday, July 11, 2012)]
[Proposed Rules]
[Pages 40836-40843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16945]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-161-FOR; Docket ID: OSM-2012-0009]


Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (``OSM''), 
Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM announces receipt of a proposed amendment to the 
Pennsylvania regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (``SMCRA'' or the ``Act''). Pennsylvania's 
proposed amendment consists of additions related to beneficial use of 
coal ash upon active and abandoned mine sites. Pennsylvania is 
introducing beneficial use of coal ash into the Pennsylvania statutory 
scheme via Pennsylvania's Solid Waste Management Act (``SWMA''), the 
Clean Streams Law (``CSL''), the Surface Mining Conservation and 
Reclamation Act and the Administrative Code. Pennsylvania intends to 
revise its approved program pursuant to the additional flexibility 
afforded by the revised Federal regulations and SMCRA, as amended, to 
ensure Pennsylvania's proposed provision is consistent with and in 
accordance with SMCRA and the corresponding regulations. This document 
provides the times and locations that the Pennsylvania program and 
proposed amendment are available for public inspection, the comment 
period during which you may submit written comments and the procedures 
that we will follow for the public hearing, if one is requested.

DATES: We will accept written comments on these amendments until 4 
p.m., Eastern Standard Time (``EST'') August 10, 2012. If requested, we 
will hold a public hearing on the amendment on August 6, 2012. We will 
accept requests to speak at a hearing until 4 p.m., EST on July 26, 
2012.

ADDRESSES: You may submit comments, identified by SATS No. PA-161-FOR 
by any of the following methods:
     Mail/Hand Delivery: Mr. Ben Owens, Acting Chief, 
Pittsburgh Field Division, Office of Surface Mining Reclamation and 
Enforcement, 3 Parkway Center, 3rd Floor, Pittsburgh, Pennsylvania 
15220.
     Fax: (412) 937-2888.
     Federal eRulemaking Portal: The amendment has been 
assigned Docket ID OSM-2012-0009. If you would like to submit comments, 
go to http://www.regulations.gov and follow the instructions.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the 
Pennsylvania regulations, this amendment, a listing of any scheduled 
public hearings, and all written comments received in response to this 
document, you must go to the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the amendments by contacting OSM's Pittsburgh 
Field Division Office; or you can view the full text of the program 
amendment available for you to read at www.regulations.gov.
    In addition, you may review a copy of the amendment during regular 
business hours at one of the following locations:

Ben Owens, Acting Chief, Pittsburgh Field Division, Office of Surface 
Mining Reclamation and Enforcement, Appalachian Regional Coordinating 
Center, 3 Parkway Center, 3rd Floor, Pittsburgh, Pennsylvania 15220, 
Telephone: (412) 937-2827, Email: [email protected].
Thomas Callaghan, P. G., Director, Bureau of Mining and Reclamation, 
Pennsylvania Department of Environmental Protection, Rachel Carson 
State Office Building, P.O. Box 8461, Harrisburg, Pennsylvania 17105-
8461, Telephone: (717) 787-5015, Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Ben Owens, Acting Chief, Pittsburgh 
Field Division; Telephone: (412) 937-2827. Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on 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, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 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 
concerning the Pennsylvania program and program amendments at 30 CFR 
938.11, 938.12, 938.13, 938.15, and 938.16.

II. Description of the Proposed Amendment

    By letter dated March 13, 2012, (Administrative Record Number PA 
894.000), Pennsylvania sent OSM a request to approve regulations 
related to the beneficial use of coal ash on active and abandoned mine 
lands. Key provisions of the proposed 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. Pennsylvania is requesting 
approval of regulations found at 25 Pa. Code Chapters 287.1 and 290, 
promulgated pursuant to the Pennsylvania SWMA.

287.1. Definitions

    Coal ash, for the purposes of Chapters 287 and 290 includes: 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. This includes materials 
are stored, processed, transported or sold for beneficial use, reuse or 
reclamation.

290.1. Definitions

    Temporary coal ash storage pile is stored for not more than two 
weeks. Water table is the toe top of the saturated zone including 
regional groundwater table, perched water tables, seasonal water tables 
and mine pools.

290.2. Scope

    Coal ash that is not beneficially used in accordance with this 
regulation is subject to residual waste regulations. In the event of 
coal ash being mixed with

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residual waste, a beneficial use designation must be approved. If the 
coal is produced by co-firing coal or waste coal with an alternative 
fuel the material is regulated under this chapter if the alternative 
fuel is less than 20% by weight of the total fuel mixture and 
contributes less than 10% by weight of total ash quantity, if the coal 
ash is mixed with construction and demolition waste, the beneficial use 
must be authorized under a permit for municipal waste and this chapter. 
Coal ash mixed with municipal waste--excluding construction and 
demolition waste--must not be beneficially used by direct placement 
into the environment.
    Beneficial use activities under this chapter do not require an 
individual disposal permit.

290.101. General Requirements for Beneficial Use

    No permit is required for beneficial use of coal ash if this 
chapter is complied with. To be considered a beneficial use, chemical 
analysis must indicate the coal ash does not exceed any of the maximum 
acceptable leachate levels discussed infra. Certain physical 
characteristics must be met as well.
    A water quality monitoring plan is required for any structural 
fill, use at a 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 (``the Department''), 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.

290.102. Use as a Structural Fill

    Sixty days prior to using coal ash as a structural fill a written 
proposal must be submitted to the Department detailing:
     Description of the project including a topographic and 
soils map;
     Commencement and completion dates;
     Construction plans including a stability analysis prepared 
by a licensed professional engineer;
     Estimate of the volume of coal ash to be utilized;
     A chemical and leaching analysis that may not be older 
than one year; and
     A landowner consent.
    Should the project be anticipated to exceed 10,000 tons of coal ash 
per acre or more than 100,000 tons in total site, the landowner consent 
must be recorded and public notice given in a local newspaper of 
general circulation at least once a week for three consecutive weeks. 
Information in this notice must include:
     Name and business address of person proposing to 
beneficially use coal ash;
     Description, location and scope of the project; and
     The location of the Department office where a copy of the 
written proposal may be inspected.
    The Department, at its discretion, may require a public notice for 
smaller projects. The Department will publish a notice in the 
Pennsylvania Bulletin of each written proposal received for use of coal 
ash as structural fill.
    The Department will respond in writing to the person proposing the 
use of coal ash as structural fill indicating if it is consistent with 
this section.
    The following additional requirements for coal ash being 
beneficially used as structural fill must be satisfied:
     pH must be 7.0 or above, unless otherwise approved; 
however, it may not exceed 9.0 pH during placement and storage unless 
public access is restricted;
     Slope of the structural fill may not be greater than 2.5 
horizontal to 1.0 vertical;
     Coal ash must be spread uniformly and compacted in layers 
not exceeding two feet in thickness and must be spread and compacted 
within 24 hours of its delivery to the site unless it is classified as 
a coal ash storage area;
     Surface runoff shall be minimized;
     Surface water shall be diverted;
     The coal ash shall be covered with 12 inches of soil;
     Minimum compaction of 90% of the maximum dry density as 
determined by the Modified Proctor Test or 95% of the maximum dry 
density as determined by the Standard Proctor Test must be achieved; 
and
     Fugitive dust shall be minimized.
    Coal ash used as structural fill may not be located within:
     100 feet of an intermittent or perennial stream;
     300 feet of an exceptional value or high quality water;
     300 feet of a water supply unless consented to by the 
owner of the water supply and submitted to the Department;
     25 feet of a bedrock outcrop (with limited exceptions to 
be approved by the Department);
     100 feet of a sinkhole or sinkhole draining area;
     A 100-year floodplain of a water of Pennsylvania unless a 
properly constructed structure is in place as permitted by the 
Department to protect the structural fill;
     100 feet of a wetland; or
     300 feet of an exceptional value wetland.
    An annual report must be submitted for any project where more than 
10,000 tons of coal ash per acre or more than 100,000 tons of coal ash 
in total is proposed.
    Any deviation from the approved physical or chemical standards must 
be reported to the Department within 72 hours.

290.103. Use as a Soil Substitute

    Coal ash may be used as a soil substitute if sixty days prior to 
such use a written proposal is submitted to the Department. The 
proposal must contain:
     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;
     Commencement and conclusion dates of the project;
     Proposed volume of coal ash to be used, the proposed 
application rate and a justification for the rate;
     A total chemical and leaching analysis and pH analysis no 
older than one year old;
     A chemical analysis as discussed infra;
     An analysis indicating the coal ash will be beneficial to 
use of the soil. This must be prepared and signed by an expert in soil 
science; and
     A landowner consent.
    The Department 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:
     pH must range between 6.5 to 8.0 when mixed together as 
required by the project;
     Chemical analysis demonstrates calcium carbonate 
equivalency requirements;
     Surface runoff is controlled;
     Coal ash must be incorporated into the soil within 48 
hours of application, unless the Department 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;

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     Coal ash shall be applied at a rate per acre that protects 
public health, public safety and the environment; and
     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:
     100 feet of an intermittent or perennial stream;
     300 feet of an exceptional value wetland or exceptional 
value or high quality waters;
     300 feet of a water supply unless a landowner consents to 
a variance;
     100 feet of a sinkhole or area draining to a sinkhole; and
     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 constituents: arsenic, boron, cadmium, 
chromium, copper, lead, mercury, molybdenum, nickel, selenium and zinc.
    Records of chemical and physical analyses, quantity of coal ash 
utilized, location of placement and sources of the coal ash must be 
maintained for a minimum of three years and must be made available upon 
request by the Department.
    Any deviation from the approved physical or chemical standards must 
be reported to the Department within 72 hours.

290.104. Beneficial Use at Coal Mining Activity Sites

    Approval for the beneficial use of coal ash at coal mining activity 
sites must be:
     In compliance with the Pennsylvania CSL, Surface Mining 
Conservation and Reclamation Act, Coal Refuse Disposal Control Act and 
other applicable environmental statutes and regulations promulgated 
thereunder;
     Certification as discussed infra; and
     Approval of a request by the Department. 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:
    [rtarr8] 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;
    [rtarr8] Documentation that the coal ash has been certified for its 
intended use, including the identity of the generator and the 
Department-assigned certification identifier;
    [rtarr8] A consent from the landowner properly recorded; and
    [rtarr8] An appropriate water quality monitoring plan.
    When beneficial coal ash is utilized 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 utilized than $1,000 for each year 
until final bond release is achieved. This fee will be utilized to 
administer compliance programs. This fee will be reviewed and adjusted 
as necessary. Public notice shall be given if coal ash is utilized at a 
coal mining activity site. Overall improvement in water quality or 
prevention of degradation of water quality is to be the requirement for 
using coal ash for reclamation purposes at coal mining activity sites. 
Coal ash shall only be beneficially used for reclamation 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 incorporated into the reclamation 
plan are being conducted.
    To be placed at active coal mining sites the following additional 
operational requirements must be met including:
     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 Department. The exception to this is when it is 
demonstrated that reclamation will be enhanced or water quality 
improved or certain exceptions for coal refuse reprocessing sites;
     Placement occurs by mixing with spoil or spreading it in 
horizontal layers no greater than 2 feet thick;
     Spreading and compaction must occur within 24 hours of 
delivery;
     Requirements of the Modified or Standard Proctor Test must 
be met when coal ash placement is not accomplished by mixing with 
spoil;
     Maintenance of the sources and volume of coal ash 
utilized;
     An approved water quality monitoring plan; and
     Minimization of fugitive dust.
    Additional requirements are necessary for sites utilizing coal ash 
as a soil substitute, soil additive, or utilized at a coal refuse 
disposal site. Quarterly water monitoring must be collected and 
submitted to the Department for review, unless less frequent monitoring 
is approved by the Department. Annual reporting of coal ash placed on a 
coal mining activity site must be submitted to the Department. Any 
deviation from the approved physical or chemical standards must be 
reported to the Department within 72 hours.

290.105. Beneficial Use at Abandoned Mine Lands (``AML'')

    Coal ash is permitted on AMLs in instances where reclamation is 
performed pursuant to a contract with the Department contingent upon 
the following:
     Compliance with all terms of this code and ancillary 
applicable environmental statutes and regulations;
     Appropriate Certification as detailed in this regulation; 
and
     An approved contract as detailed herein.
    Each aforementioned contract proposal has several components, 
including a description of the project; proof that the coal ash has 
been certified for its intended use, including the identity of the 
generator; a reclamation plan prepared and sealed by a professional 
engineer; a signed statement of the land owner consenting to the 
placement of the coal ash which must be recorded, and a detailed water 
quality monitoring plan. The description of the project shall include a 
commencement and completion date for the project, the amount of coal 
ash to be utilized--in cubic yardage--and detail the coal ash placement 
and storage of the coal ash prior to placement and properly identify 
the sources of the coal ash. When coal ash is utilized as a soil 
substitute or an additive, the proposal must also include the 
justification for coal ash as beneficial use and the application rate. 
In the event more than 10,000 tons of coal ash per acre or more than 
100,000 total tons of coal ash are utilized at one project public 
notice must be given for a period of three consecutive weeks. 
Contiguous projects will be considered a single project when 
determining if the above factors apply. The Department also has 
discretion to require other coal ash placement projects be advertised. 
A proof of publication of the notice is required demonstrating the 
notice contained:
     Name and business address of proposer;
     Description of the location and scope of the use; and
     Location where a copy of the contract proposal is 
available for public inspection.
    Additionally, certain operating requirements for use of coal ash 
are required:
     Slope cannot exceed 2.5 horizontal to 1.0 vertical, unless 
approved by the Department after a demonstration of stability;
     Uniformity of spreading is necessary and compacting in 
layers shall not exceed two feet in thickness

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unless approved by the Department. Spreading and compacting must occur 
within 24 hours of delivery unless provisions relative to coal ash 
storage are invoked;
     Surface runoff must be minimized and storm water managed;
     Surface water shall be diverted;
     Twelve inches of soil must cover the coal ash unless an 
infiltration buffer is utilized;
     Minimum compaction of 90% or 95% of the maximum dry 
density must be accomplished in conformity with the Modified Proctor 
Test or the Standard Proctor Test, respectively. Ash from each source 
shall be tested individually;
     Fugitive dust must be minimized;
     When used for reclamation the coal ash generally cannot be 
placed within:
    [rtarr8] 100 feet of an existing intermittent or perennial stream 
or within 300 feet of an exceptional value or high quality water, 
unless demonstration is made to the Department that placement in this 
zone is necessary to achieve remediation of abandoned mine features 
located within this zone;
    [rtarr8] 100 feet of a sinkhole or a wetland (but not an 
exceptional value wetland which requires a 300 foot buffer); and
    [rtarr8] A 100-year floodplain of a water of the Commonwealth 
unless protection of this area is available consistent with the Flood 
Plain Management Act, the Storm Water Management Act and the Dam Safety 
Encroachment Act.
     When used as a soil substitute or soil additive, the coal 
ash shall be applied at a rate per acre that protects public health, 
public safety and the environment; must be part of the approved 
reclamation plan to increase productivity or properties of the soil; 
and may not be used in excess of the maximum cumulative loading rates.
    An annual report must be filed with the Department detailing the 
company contact information, identity of the reclamation contract, 
including Department-assigned certification identifier, identity of 
each source of coal ash and the amount of coal ash placed on the site 
during the previous calendar year.
    Should any person utilizing coal ash for beneficial use discover 
evidence that the coal ash does not meet certification requirements 
this person must notify the Department within 72 hours.

290.106. Other Beneficial Uses

    The following do not require a permit as they are deemed beneficial 
uses. This determination is contingent upon the uses complying with the 
requirements of this section:
     Coal ash used in the manufacture of concrete or cement as 
long as it is utilized within 24 hours of delivery or stored in 
accordance with applicable coal ash storage criteria;
     Extraction or recovery of a component of coal ash as long 
as it is stored appropriately before and after extraction or recovery 
and disposal of the unutilized fraction of coal ash is subject to the 
applicable requirements for residual waste;
     Use of fly ash as a stabilized product. Moreover, when fly 
ash is altered prior to use or during placement it will be considered a 
beneficial use if:
    [rtarr8] The person proposing use gives advance written notice;
    [rtarr8] Fly ash is not mixed with solid waste--unless advance, 
written approval is given by the Department;
    [rtarr8] The use results in a demonstrated reduction of the 
potential of the material to leach constituents into the environment;
    [rtarr8] If the fly ash is used as structural fill the applicable 
requirements contained herein are met; and
    [rtarr8] If the fly ash is used as a soil amendment the applicable 
requirements contained herein are met.
     Use of bottom ash or boiler slag as an antiskid material 
or road surface preparation material, if consistent with applicable 
Department of Transportation specifications. Note: the use of fly ash 
for the same purpose is not deemed a beneficial use;
     Use of coal ash as raw material for a commercially 
valuable product including the use of bottom ash as construction 
aggregate. Provisions relative to storage prior to processing are 
applicable;
     Use of coal ash pipe bedding contingent upon advance, 
written notice to the Department including an evaluation of the pH and 
chemical analysis of the coal ash;
     Use of coal ash for mine subsidence control, mine fire 
control and mine sealing, if the following are true:
    [rtarr8] Advance, written notice is given to the Department;
    [rtarr8] Utilization occurs within 24 hours of delivery, unless 
storage provisions are adhered to;
    [rtarr8] If funded by the Department, all Departmental requirements 
and contracts must be adhered to; and
    [rtarr8] The coal ash will undergo cementitious reactions.
     Use of coal ash as a fuel. To be considered a ``fuel'' the 
minimum heating value of 5,000 btu/lb must be exceeded. Storage of the 
coal ash prior to use must be consistent with this subchapter.
    To fully comply with a designation of beneficial use, any person 
using coal ash is obligated to notify the Department of any evidence 
that the material does not meet appropriate chemical or physical 
property requirements and documentation of chemical and physical 
analyses of the quantity of coal ash utilized, placement and sources 
must be maintained for a minimum of three years following the cessation 
of use of the coal ash.

290.107. Requests for Information

    The Department has the right to request information documenting 
compliance with this subchapter and failure to have documentation of 
compliance may result in a presumption of that person disposing of 
residual waste without a permit.

290.201. Coal Ash Certification

    To obtain coal ash certification, the following must be met:
     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, 10 times the waste 
classification standard and for non-metals and anions (other than 
sulfate and fluoride) the waste classification standard for a 
contaminant;
     pH must be greater than 7.0;
     When coal ash is utilized 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 Department; and
     When coal ash is utilized as a low permeability material 
the hydraulic conductivity must be 1.0 x 10 to the negative sixth power 
or less. This is evaluated utilizing approved Department 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 
Department.
    Requests to the Department for certification by a generator must 
include:
     Name and location of the generator;
     Designation of the beneficial use or uses requested;
     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 
utilized and the expected percentages of coal ash that will be derived 
and ultimately delivered to the beneficial use site;

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     Description of any material mixed with the coal ash;
     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:
    [rtarr8] Total concentrations and leachable concentrations of a 
full complement of heavy metals using methods and pH using soil and 
waste pH method found in EPA's Test Methods for Evaluating Solid Waste, 
Physical/Chemical Methods'' (EPA Publication No. SW-846) or comparable 
methods approved by the Department. Leachate concentrations must be 
determined using EPA Method 1312, or an approved Department 
alternative.
     A laboratory analysis for optimum moisture content and dry 
density;
     Analysis of hydraulic conductivity;
     Determination of neutralization potential;
     A detailed description of the sampling methodology 
utilized; and
     Other necessary testing if required for a specific 
beneficial use proposed.
    The Department 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 shall submit regular monitoring information demonstrating 
continued compliance. The monitoring information shall 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 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 shall notify the Department of any changes to 
the information found in the application or evidence that the coal ash 
is not meeting certification requirements.

290.202. Revocation of Certification

    Certification will be revoked if any of the following occur:
     Monitoring requirements are not met;
     Coal ash exceeds certification standards and exceedance 
certification requirements, as outlined infra; or
     Physical or chemical characteristics make the coal ash 
unsuitable for beneficial use.
    Should certification be revoked, the coal ash cannot be used at a 
coal mining activity site or an AML site in the Commonwealth unless 
recertification is approved by the Department as outlined infra.
    Recertification is possible if the generator can demonstrate via a 
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.

290.203. Exceedance of Certification Requirements

    Should sample results exceed any certification standard, the 
generator must--within 30 days of receiving the results--submit to the 
Department the following, as applicable:
     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
     Demonstration of an anomaly. This shall 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, should the generator demonstrate to 
the Department'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.

290.301. Water Quality Monitoring

    Prior to placement or storage of coal ash, a water quality 
monitoring plan shall be submitted to the Department. At a minimum the 
plan must include:
     The location and design of down gradient and up-gradient 
monitoring points;
     A minimum of 12 background samples from each monitoring 
point taken at monthly intervals prior to placement of coal ash; and
     Samples are to be taken quarterly after approval.
    The person taking the samples and the laboratory performing the 
analysis shall employ the quality assurance/quality control procedures 
outlined in the 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 EPA protocol. The laboratory performing 
water quality analysis must be in conformity with Department mandated 
environmental laboratory accreditation.
    Samples are to be analyzed for pH, temperature, specific 
conductance, alkalinity, acidity, sulfate, chloride, fluoride, nitrate, 
nitrate, ammonia, and total suspended solids without filtration.
    Samples shall be analyzed for a host of heavy metal, 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 Department's discretion.
    Quarterly water quality monitoring will continue and be submitted 
to the Department 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 Department.
    A demonstration of attainment of applicable groundwater or surface 
water remediation standards must be made and must be in conformity with 
this subchapter relative to assessment and abatement.

290.302. Number, Location and Depth of Monitoring Points

    The water quality monitoring system shall 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:
     At least one point that is up-gradient 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 utilized;
     At least three groundwater monitoring points down gradient 
of the coal ash placement, unless two are approved by the Department. 
Furthermore, at the Department'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. Down gradient 
wells must be hydrologically connected to the area of coal 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

[[Page 40841]]

and protected as approved by the Department; and
     Surface water monitoring points are necessary where such 
monitoring may indicate any chemical influence on the hydrologic regime 
from coal ash placement.
    Up-gradient and down gradient points should be sufficient in 
number, location, and depth to be representative of water quality. 
These points shall not interfere with routine operations at the site 
and in most cases should be within 200 feet of the coal ash placement 
area.
    Up-gradient points shall be located so as not to be affected by 
effects on groundwater or surface water from the coal ash placement 
area. Down gradient monitoring points shall be placed to provide early 
detection.
    All wells drilled must be in compliance with the Water Well 
Drillers License Act and all well materials shall be decontaminated 
prior to installation.

290.303. Standards for Wells and Casing of Wells

    Monitoring wells must be cased to maintain the integrity of the 
borehole and be constructed of material that will not reach groundwater 
that is being monitored. The minimum casing diameter must be four 
inches. 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.
    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.
    The casing must extend at least one foot above ground, unless the 
Department allows for flush mount wells.
    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 Department has discretion to 
approve alternative casing designs for wells in stable formations.
    The protective monitoring well casings must be enclosed in a 
protective casing that protects the well from damage, be installed for 
at least 10 feet above the well cap and must stick up at least three 
feet, and be grouted and placed with a concrete collar at least three 
feet deep. The casing must be numbered, protrude above the monitoring 
well casing, have a locked cap and must be made of steel or other 
material of equivalent strength.

290.304. Assessment Plan

    An assessment plan must be prepared within 60 days should any of 
the following occur:
     Degradation is indicated from water monitoring. Federal 
ground water sampling and analysis requirements will be utilized to 
assess the data; or
     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:
     Ten working days following receipt of the degraded sample 
and the re-sampling indicates degradation has not occurred. 
Determination that degradation is not present must be approved by the 
Department; or
     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, 
quality, quantity, area, extent and depth of degradation and the rate 
and direction of migration of contaminates. It must be prepared and 
sealed by a 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 shall 
be constructed in accordance with this subchapter.
    All assessment plans must include:
     Sampling and analytical methods for parameters to be 
evaluated;
     Evaluation procedures, including the previously gathered 
groundwater or surface water quality and quantity information is to be 
included to determine the concentration, rate and extent of groundwater 
or surface water degradation from the facility;
     A biological assessment of surface water;
     An implementation schedule; and
     Identification of the abatement standard that will be met.
    The assessment plan shall be implemented upon approval by the 
Department within a reasonable time not to exceed six months.
    Should the Department 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 shall 
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 shall submit a report containing the new data collected, 
analysis of the data, and recommendations on the necessity for 
abatement.
    If the Department 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 Department. This revised water quality 
plan must outline any necessary changes and include an application for 
permit modification if applicable. The modifications to the plan shall 
be implemented within 30 days of approval.
    Nothing in this section prevents prior or concurrent abatement or 
water supply replacement.

290.305. Abatement Plan

    An abatement plan must be submitted to the Department when any of 
the following occur:
     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;
     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:
    [rtarr8] 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 Department 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 this Commonwealth. The plan must 
include specific abatement of groundwater or surface water degradation, 
techniques to prevent further degradation and a schedule for 
implementation.
    Abatement procedures must demonstrate compliance with at least one 
of the following standards at the identified compliance points:
     Situations where Statewide health standards are 
applicable, compliance

[[Page 40842]]

with the Statewide health standard for that constituent at and beyond 
500 feet of the perimeter of or the property boundary, whichever is 
closer;
     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 Department;
     Constituents for which no primary maximum contaminant 
levels exist the risk-based standard (addressed supra) at and beyond 
500 feet of the perimeter of the placement area or the property 
boundary, whichever is closer is applied if the following conditions 
are met:
    [rtarr8] The risk assessment used to establish the standard assumes 
human receptors are present at the boundary;
    [rtarr8] The level is derived in a manner consistent with generally 
accepted and applicable health risk assessments; and
    [rtarr8] The level is based on scientifically valid studies 
conducted in accordance with good laboratory practice standards or 
other scientifically valid studies approved by the Department and
    [rtarr8] 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 Department may approve a compliance point beyond 500 feet on 
land owned by the owner of the coal ash placement area.
    The abatement plan shall be completed and submitted to the 
Department for approval within 90 days, unless 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 Department.
    The abatement plan shall be implemented within 60 days of approval.
    Should the Department determine that the plan is incapable of 
achieving the groundwater or surface water protection contemplated in 
the approval the Department 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 
Department or another order the Department deems effective for 
enforcement.

290.306. Recordkeeping

    Records, analyses, and evaluations of monitoring data and 
groundwater elevations must maintained for a minimum of three years 
after water quality monitoring ceases. This documentation must be made 
available to the Department upon request.

290.307. Interim Water Quality Monitoring Requirements

    This section is applicable to sites where coal ash has been stored 
or placed for beneficial use prior to 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 
is identified and samples are taken quarterly. This plan shall be 
implemented within one year of the Department's approval of the plan.
    Sites previously subject to water quality monitoring must ensure 
new monitoring points and replacement wells constructed after December 
11, 2011, 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 and 
static water elevation for monitoring wells and the flow of springs, 
seeps and mine discharges must be measured.

Summary of Proposed Amendment Submitted by Pennsylvania

    The key provisions of the rule address the operating requirements 
for beneficial use of coal ash upon active and abandoned mine land 
sites. The proposed amendment addition has the following components:
     Chemical and physical certification standards for coal ash 
to ensure compliance with beneficial use requirements;
     Coal ash monitoring to ensure coal ash meets qualification 
criteria;
     Water quality monitoring to create a robust dataset to 
facilitate the evaluation and documentation of water quality at sites 
where coal ash is beneficially used;
     A minimum number of monitoring points to characterize the 
groundwater;
     Recording of the landowner consent for placement of coal 
ash for beneficial use;
     Reporting of volumes and locations where coal ash is 
beneficially used;
     Operational and monitoring standards for all types of 
beneficial use;
     A centralized process to qualify coal ash for beneficial 
use at mine sites;
     An annual fee payable to the Department to offset some of 
its costs for coal ash and water quality sampling and testing at mine 
sites where coal ash is beneficially used; and
     Abatement plan requirements in the event that site 
assessments indicate groundwater or surface water degradation.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether Pennsylvania's proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If we approve 
the amendment, it will become part of Pennsylvania's State Program.

Electronic or Written Comments

    If you submit written comments, they should be specific, confined 
to issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent State or 
Federal laws or regulations, technical literature, or other relevant 
publications.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than those 
listed (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., EST, on July 
26, 2012. If you are disabled and need reasonable

[[Page 40843]]

accommodations to attend a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT. We will arrange the location and 
time of the hearing with those persons requesting the hearing. If no 
one requests an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public; if possible, we will post notices of meetings 
at the locations listed under ADDRESSES. We will make a written summary 
of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSM for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 18, 2012.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.
[FR Doc. 2012-16945 Filed 7-10-12; 8:45 am]
BILLING CODE 4310-05-P