Federal Register / Vol. 87, No. 70 / Tuesday, April 12, 2022 / Rules and Regulations 21561 

In accordance with the principles of 

Executive Orders (E.O.) 12866 and 

13563, this action is not a significant 

regulatory action. E.O. 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health, 

and safety effects; distributive impacts; 

and equity). E.O. 13563 is supplemental 

to and reaffirms the principles, 

structures, and definitions governing 

regulatory review as established in E.O. 

12866. E.O. 12866 classifies a 

‘‘significant regulatory action,’’ 

requiring review by the Office of 

Management and Budget, as any 

regulatory action that is likely to result 

in a rule that may: (1) Have an annual 

effect on the economy of $100 million 

or more or adversely affect in a material 

way the economy; a sector of the 

economy; productivity; competition; 

jobs; the environment; public health or 

safety; or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the E.O. 

Because this is not a rulemaking action, 

this is not a significant regulatory action 

as defined in Section 3(f) of E.O. 12866. 

This action will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with E.O. 13132 

(Federalism), it is determined that this 

action does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

List of Subjects in 21 CFR Part 1308 

Administrative practice and 

procedure, Drug traffic control, 

Reporting and recordkeeping 

requirements. 

For the reasons set out above, DEA 

amends 21 CFR part 1308 as follows: 

PART 1308—SCHEDULES OF 

CONTROLLED SUBSTANCES 

■ 1. The authority citation for part 1308 

continues to read as follows: 

Authority: 21 U.S.C. 811, 812, 871(b), 

956(b), unless otherwise noted. 

■ 2. In § 1308.11, add paragraphs (h)(50) 

through (h)(56) to read as follows: 

§ 1308.11 Schedule I 

* * * * * 

(h) * * * 

(50) 2-(2-(4-butoxybenzyl)-5-nitro-1H-benzimidazol-1-yl)-N,N-diethylethan-1-amine, its isomers, esters, ethers, salts, and salts of isomers, esters and ethers (Other name: Butonitazene) .................................................................................................................................. 9751 

(51) 2-(2-(4-ethoxybenzyl)-1H-benzimidazol-1-yl)-N,N-diethylethan-1-amine, its isomers, esters, ethers, salts, and salts of isomers, 

esters and ethers (Other names: Etodesnitazene; etazene) ......................................................................................................................... 9765 

(52) N,N-diethyl-2-(2-(4-fluorobenzyl)-5-nitro-1H-benzimidazol-1-yl)ethan-1-amine, its isomers, esters, ethers, salts, and salts of isomers, esters and ethers (Other name: Flunitazene) .................................................................................................................................... 9756 

(53) N,N-diethyl-2-(2-(4-methoxybenzyl)-1H-benzimidazol-1-yl)ethan-1-amine, its isomers, esters, ethers, salts, and salts of isomers, 

esters and ethers (Other name: Metodesnitazene) ...................................................................................................................................... 9764 

(54) N,N-diethyl-2-(2-(4-methoxybenzyl)-5-nitro-1H-benzimidazol-1-yl)ethan-1-amine, its isomers, esters, ethers, salts, and salts of 

isomers, esters and ethers (Other name: Metonitazene) ............................................................................................................................. 9757 

(55) 2-(4-ethoxybenzyl)-5-nitro-1-(2-(pyrrolidin-1-yl)ethyl)-1H-benzimidazole, its isomers, esters, ethers, salts, and salts of isomers, 

esters and ethers (Other names: N-pyrrolidino etonitazene; etonitazepyne) ............................................................................................ 9758 

(56) N,N-diethyl-2-(5-nitro-2-(4-propoxybenzyl)-1H-benzimidazol-1-yl)ethan-1-amine, its isomers, esters, ethers, salts, and salts of 

isomers, esters and ethers (Other name: Protonitazene) ............................................................................................................................ 9759 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–07640 Filed 4–11–22; 8:45 am] 

BILLING CODE 4410–09–P 

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. 

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: 

bowens@osmre.gov. 

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 


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21562 Federal Register / Vol. 87, No. 70 / Tuesday, April 12, 2022 / Rules and Regulations 

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: 

https://www.epa.gov/coalash/coal-ashrule. 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 https://

www.regulations.gov. 

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 


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‘‘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 premining 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: 

• 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 of coal ash for 

eleven constituents listed in subsection 

(e); 

• 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 

• 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: 

• 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 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; 

• Coal ash must 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 highquality waters; 

• 300 feet of a water supply unless 

the water supply owner 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 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 


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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 premining 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: 

• 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; 

• Certified under section 290.201; 

and 

• 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: 

Æ 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; 

Æ Documentation that the coal ash 

has been certified for its intended use, 

including the identity of the generator 

and the PADEP-assigned certification 

identifier; 

Æ A consent from the landowner 

properly recorded in the county deeds 

office; and 

Æ 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: 

• 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; 

• Placement occurs by mixing with 

spoil or spreading it in horizontal layers 

no greater than 2 feet thick unless 

otherwise approved by the PADEP; 

• 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; 

• 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 used; 

• An approved water quality 

monitoring plan; and 

• 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, 


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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: 

• 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; 

• pH must be greater than 7.0; 

• 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 

• When coal ash is used as a low 

permeability material the hydraulic 

conductivity must be 1.0 × 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: 

• 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 

used, and the expected percentages of 

coal ash that will be derived and 

ultimately delivered to the beneficial 

use site; 

• 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: 

Æ 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. 


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Æ 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. 

Æ 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. 

Æ 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) 

• 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 used; and 

• 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: 

• Monitoring requirements are not 

met; 

• Coal ash exceeds certification 

standards and exceedance certification 

requirements, as described in section 

290.203; or 

• 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: 

• 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 

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 


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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: 

• 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 

• 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: 

• 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 upgradient point; in such instances down 

gradient monitoring points will be used; 

• 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 

• 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 


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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: 

• 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. 

• 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 PADEP 

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 

PADEP 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 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. 

• 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: 

• 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 

• 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: 

• Within ten working days following 

receipt of the degraded sample, resampling indicates degradation has not 

occurred. Determination that 

degradation is not present must be 

approved by the PADEP; or 

• 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: 

• Sampling and analytical methods 

for parameters to be evaluated; 

• 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; 

• A biological assessment of surface 

water, if required; 

• An implementation schedule; and 

• 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 noncompliance 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 


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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: 

• 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: 

• 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: 

• 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; 

• 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. Loadbased standards at groundwater 

discharge points are acceptable under 

certain circumstances where approval 

was otherwise granted by the PADEP; 

• 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: 

Æ The risk assessment used to 

establish the standard assumes human 

receptors are present at the property 

boundary; 

Æ 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; 

Æ 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 

Æ If the constituent is a carcinogen, 

the level represents a concentration 

associated with an excess lifetime 

cancer risk level of 1 × 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 


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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, 


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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. 


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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 offgassing 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 


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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 https://www.atsdr.cdc.gov/sites/ 

polycythemia_vera/docs/fact_sheet_

exposure_assessment_of_groundwater_

for_the_polycythemia_vera_cluster_in_

northeast_pennsylvania.pdf), and 

Environmental exposure assessment of 

air pollutants for the polycythemia vera 

cluster in northeastern Pennsylvania, 

page 3 (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). 

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 


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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 


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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 × 10¥5 while 

Pennsylvania’s water quality standards 

at 25 Pa. Code 93.8 are at 1 × 10¥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 


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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¥4 and 10¥6

(pursuant to section [250.304 and 

250.305]). The promulgated MSCs are 

calculated based on the median risk 

level of 10¥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. 


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Federal Register / Vol. 87, No. 70 / Tuesday, April 12, 2022 / Rules and Regulations 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-togovernment 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 hydrologicbalance 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 AtlanticAppalachian Region. 

For the reasons set out in the 

preamble, 30 CFR part 938 is amended 

as set forth below: 

PART 938—PENNSYLVANIA 

■ 1. The authority citation for Part 938 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. In § 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. 

* * * * * 


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21578 Federal Register / Vol. 87, No. 70 / Tuesday, April 12, 2022 / Rules and Regulations 

Original amendment submission 

date 

Date of final 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2021–0678; FRL–9299–02– 

R8] 

Air Plan Approval; Montana; 2015 

Ozone NAAQS Interstate Transport 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a revision 

submitted by the State of Montana as 

meeting the Clean Air Act (CAA) 

requirement that each State 

Implementation Plan (SIP) contain 

adequate provisions to prohibit 

emissions that will significantly 

contribute to nonattainment or interfere 

with maintenance of the 2015 ozone 

National Ambient Air Quality Standards 

(NAAQS) in any other state. EPA is 

taking this action pursuant to the CAA. 

DATES: This rule is effective on May 12, 

2022. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2021–0678. All 

documents in the docket are listed on 

the http://www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through http://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional availability information. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Schmitt, Air and Radiation 

Division, EPA, Region 8, Mailcode 

8ARD–IO, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129, 

telephone number: (303) 312–6728, 

email address: schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means EPA. 

I. Background 

On February 3, 2022 (87 FR 6095), 

EPA published a document in the 

Federal Register proposing approval of 

the interstate transport portion of the 

State of Montana’s October 1, 2018 SIP 

revision. EPA’s proposed approval 

addressed the CAA requirement 

prohibiting air emissions from the State 

that significantly contribute to 

nonattainment or interfere with 

maintenance of the 2015 8-hour ozone 

NAAQS in other states. See CAA section 

110(a)(2)(D)(i)(I) (the ‘‘good neighbor 

provision’’). The rationale for EPA’s 

proposed action is given in the February 

3, 2022 proposal and will not be 

repeated here. EPA received no public 

comments on the proposal for this 

rulemaking. 

II. Final Action 

EPA is approving the good neighbor 

portion of the State’s October 1, 2018 

SIP revision into the Montana SIP. This 

revision is approved as meeting CAA 

section 110(a)(2)(D)(i)(I) requirements 

that Montana’s SIP includes adequate 

provisions prohibiting any source or 

other type of emissions activity within 

the state from emitting any air pollutant 

in amounts that will contribute 

significantly to nonattainment or 

interfere with maintenance of the 2015 

ozone NAAQS in any other state. 

III. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, described in 

the Unfunded Mandates Reform Act of 

1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 


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